2011-00111351-CU-AS

Edna Peoples vs. Metropolitan Life Insurance Company

Nature of Proceeding:      Motion for Summary Judgment and/or Adjudication (J.T. Thorpe & Son,

Filed By:   Loh, Alice K.

Defendant J.T. Thorpe & Son, Inc.’s motion for summary judgment, or in the
alternative, summary judgment, is granted.

This motion was continued from April 11, 2014, pursuant to CCP § 437c(h) pursuant to
Plaintiffs’ request.  Trial is set for July 7, 2014.

In this asbestos lawsuit, Plaintiffs allege causes of action for negligence, breach of
implied warranty, strict product liability, false representation, fraud and conspiracy, and
premises liability.  They also seek punitive damages.  They claim that the Decedent
(Archie Peoples) was exposed to asbestos while working with asbestos-containing
products at work sites including the Pollock Shipyard in Stockton between 1948-1951,
the Food Machinery Corporation in San Jose from 1952-1956 and at the Johns-
Mansville Corporation plant in Stockton from 1957-1981.

Defendant’s separate statement includes the following.  Plaintiff Judith Haskins
testified that she never heard of Defendant and did not associate Defendant with any
product or service, that she did not know whether the Decedent worked with any of
Defendant’s employees or any product that was removed or installed by Defendant.   Plaintiff Carol Wynns testified similarly and also testified that she had no knowledge as
to whether Decedent worked with any product associated with Defendant.  Plaintiff
Donald Peoples testified similarly. Plaintiff Edna Peoples did not testify about
Defendant in her deposition.  In their discovery responses Plaintiffs provided no
specific facts to show Defendant exposed Decedent to asbestos and did not identify
any witnesses or documents to support their claim.

Defendant moves for summary judgment, or in the alternative summary adjudication,
on multiple grounds, primarily on the grounds that Plaintiffs have no evidence to show
that the Decedent was exposed to asbestos by Defendant.  Defendant relies on the
fact that Plaintiffs provided no specific facts in their discovery responses to support
their contentions that Defendant exposed the Decedent to asbestos and testified in
their depositions that they had never heard of Defendant, did not associate Defendant
with any product or service, did not know whether the Decedent worked with any of
Defendant’s employees or its products, and did not know whether or any product that
was removed or installed by Defendant.

“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 asbestos-containing
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products…”  (Rutherford v. Owens-Corning, Inc. (1997) 16 Cal.4   953, 983.)   “[T]he
proper analysis is to ask whether the plaintiff has proved exposure to a defendant’s
product, of whatever duration, so that exposure is a possible factor in causing the
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disease…”  (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4   1409, 1415-
1416.) .)  If there has been no exposure, there is no causation. (Dumin v. Owens-
Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655.)” (McGonnell v. Kaiser
Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103.)  In short, as a general rule, a plaintiff
claiming to have been injured by a defective product must prove that the defendant’s
product, or some instrumentality under the defendant’s control, caused his or her
injury. (See Sindell v. Abbott Laboratories, (1980) 26 Cal.3d 588, 597-598; Garcia v.
Joseph Vince Co., (1978) 84 Cal. App. 3d  868, 873-874, citing Annot. (1973) 51
A.L.R.3d 1344, 1349, fns. omitted [“ ‘Regardless of the theory which liability is
predicated upon, whether negligence, breach of warranty, strict liability in tort, or other
grounds, it is obvious that to hold a producer, manufacturer, or seller liable for injury
caused by a particular product, there must first be proof that the defendant produced,
manufactured, sold, or was in some way responsible for the product’ ”]; 63 Am.Jur.2d
(1997) Products Liability, § 154, p. 196.)

In opposition, Plaintiffs simply argue that Defendant failed to meet its initial burden to
show that it is entitled to judgment as a matter of law on any of the causes of action
asserted against it in the complaint.  They argue that simply pointing to the deposition
testimony of Plaintiffs Wynns, Haskins and Donald People where they state they had
no personal knowledge regarding Defendant or whether the Decedent worked with
Defendant’s products is insufficient to shift to them the burden of demonstrating the
existence of a triable issue of material fact citing to  Weber v. John Crane, Inc. (2006)
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143 Cal.App.4   1433, 1439.  “[T]he cases do not establish that a defendant shifts the
burden of production to the plaintiff by showing that a plaintiff witness has no personal
recall of the defendant’s product.”  (Id. [emphasis in original])  Rather, a defendant
shifts the burden by showing that in addition to a plaintiff’s lack of personal knowledge,
that the plaintiff does not possess, or cannot reasonably obtain evidence of exposure
to an asbestos-containing product for which defendant is liable.  (Id.) [emphasis added]

They also argue that Defendant cannot rely upon Edna Peoples deposition testimony  because it [Thorpe] did not attend the deposition and never asked any questions.
Here, the Court rejects Plaintiffs’ arguments and finds that Defendant did shift the
burden to Plaintiffs to show the existence of a triable issue of material fact as to
causation.

Weber does not assist Plaintiffs because here Defendant is not simply relying solely on
deposition testimony showing a lack of personal knowledge regarding Defendant’s
products but also discovery responses devoid of any facts showing Defendant
exposed the Decedent to asbestos.  In finding that a defendant failed to meet its
burden to show that the plaintiff could not obtain evidence to show he was exposed to
one of its asbestos containing product simply by relying on the plaintiff’s inability to
personally recall the defendant’s product, it made clear that the defendant did not
support its motion with evidence that the plaintiff “failed to provide meaningful
responses to comprehensive interrogatories designed to elicit all the evidence that
plaintiffs had to support their contention of liability.”  (Weber, supra, at 1442.)
Defendant has here supported its motion with such evidence.

Plaintiffs alleged that the Decedent to asbestos while he worked in the Army from 1950
to 1953 and at the Johns Mansville Plant in Stockton from 1958 to 1980.  Defendant’s
comprehensive discovery asked Plaintiffs to state for each location where they claimed
the Decedent was exposed to asbestos, the duration and time periods of exposure, the
asbestos-containing materials used by Defendant to which Decedent was exposed,
and the manner of exposure.  (UF 19.)  Plaintiffs’ responses essentially repeated their
allegations against Defendant, and lack any specific facts, names of persons with
knowledge, or specific documents to show Defendant performed work at the job sites
identified for the Decedent or any specific facts that Defendant exposed the Decedent
to asbestos.  In addition, none of the Plaintiffs identified Defendant, its products, or
whether the Decedent worked with Defendant’s products.  (UF 4-18)

While Plaintiffs are correct that  Weber states that a defendant will not shift the burden
in an asbestos case simply by pointing to deposition testimony that the plaintiff cannot
personally recall the Defendant’s product, relevant case law in the asbestos area
makes clear that Defendant here properly shifted the burden, as Defendant relies upon
the deposition testimony and Plaintiffs’ factually devoid discovery responses.  “If
plaintiffs respond to comprehensive interrogatories seeking all known facts with
boilerplate answers that restate their allegations, or simply provide laundry lists of
people and/or documents that restate their allegations, or simply provide laundry lists
of people and/or documents, the burden of production will almost certainly be shifted to
them once defendants move for summary judgment and properly present plaintiffs’
factually devoid responses.”  (Andrews v. Foster Wheeler, LLC (2006) 138 Cal.App.4th
96, 101, 107.)

Defendant’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.”  (Id., at 101.)  Indeed,
Plaintiffs’ interrogatory responses appear to be indistinguishable from the responses
discussed in Andrews .  Plaintiffs’ ignore their discovery responses in their opposition
and simply act as if the motion was based solely on their deposition testimony, which it
is not.

Thus, the Court rejects Plaintiffs’ argument that Defendant failed to meet its burden with respect to its motion for summary judgment on their complaint on the basis that
Defendant cannot solely rely upon their deposition testimony.  Further, while Plaintiffs
argue that Defendant cannot rely upon Plaintiff Edna Peoples’ testimony because it did
not attend her deposition and ask questions, such fact is of no import.  Indeed, as seen
above, Defendant’s motion for summary judgment on the basis that Plaintiffs cannot
prove causation was premised on the various Plaintiffs’ deposition testimony and their
factually devoid responses to Defendant’s comprehensive discovery.  Thus, while
Defendant may not have questioned Ms. Peoples at her deposition, the testimony of
the other plaintiffs combined with the factually devoid discovery responses is sufficient
to satisfy Defendant’s initial burden under Andrews and  Weber.

Plaintiffs also argue that Defendant failed to meet its initial burden because after this
motion was continued under CCP § 437c(h), the deposition of John Aguilar, a co-
worker of the Decedent at Johns-Mansville in Stockton began but was not completed.
Plaintiffs argue that Defendant did not ask Mr. Aguilar any questions to determine what
knowledge he may have regarding Defendant.  The Court rejects this argument.  As
correctly pointed out by Defendant, Defendant’s failure to ask any questions does not
mean that it did not meet its burden of proof on this motion, as Plaintiffs never
identified Mr. Aguilar as a witness.  (UF 21.)

In sum, the Court concludes that Defendant has met its initial burden on its motion for
summary judgment on the basis that Plaintiffs cannot show that the Decedent was
exposed to asbestos by Defendant and thus that the essential element of causation is
lacking against Defendant on all causes of action in the complaint.  A defendant is not
required to conclusively negate one or more elements of the plaintiffs cause of action.
(Saelzer v Advance, Group 400 (2001) 25 C4th 763, 780-781).  Rather, to meet its
burden, the defendant is only required to show that the plaintiff cannot prove an
element of its cause of action, i.e., that the plaintiff does not possess and cannot
reasonably obtain evidence necessary to show this element.  (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 853-855.)  At the same time, a defendant cannot
shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff
cannot prove its case; a moving defendant must still make “an affirmative showing” in
support of its motion.  (See Aguilar , supra, 25 Cal. 4th at 854-855 n.23; Addy v Bliss &
Glennon (1996) 44 Cal. App. 4th 205, 214.)  Defendant has shown that Plaintiffs will
be unable to establish that it exposed the Decedent to asbestos and thus that it will be
unable to prove causation. Defendant’s showing is sufficient to show that it is entitled
to judgment as a matter of law on Plaintiffs’ complaint and to shift to Plaintiffs’ the
burden of demonstrating the existence of a triable issue of material fact.  (Aguilar,
supra, at p.  849.)

While Plaintiffs only argued that Defendant did not shift the burden in their opposition,
they cited to Defendant’s job records at the Johns Manville work site that were
produced at the deposition of Defendant’s PMK.  The motion was originally continued
pursuant to CCP § 437c(h) to allow Plaintiffs to depose Plaintiffs’ PMK.  Plaintiffs’
deposed Defendant’s PMK who produced documents showing that Defendant
performed work and delivered asbestos containing products to the Decedent’s job
sites in April 1952, April 1976 and October 1980.  (Jhans Decl. ¶¶ 6-8.)  The Court
finds that the evidence is insufficient to demonstrate the existence of a triable issue of
material fact as to causation.  Here, there is no direct evidence of exposure.  Plaintiffs
apparently are seeking to show that they presented circumstantial evidence of
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exposure.  In Lineaweaver, supra, 31 Cal.App.4   1409, the court found sufficient
circumstantial evidence of exposure to a defendant’s product where the defendant had  distributed asbestos products to the plaintiff’s work site during the entire 34 year period
he worked there, the plaintiff repeatedly worked with asbestos insulation, the plaintiff
worked throughout the sprawling refinery which had insulation over 2/3 of its pipes and
equipment and the plaintiff saw boxes of the defendant’s products at the refinery.  (Id.
at 1412-1413, 1419.)  The court found that the circumstantial evidence was sufficient
to support a reasonable inference of exposure because “plaintiff has established 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 the more than 30 years of
working with and around asbestos throughout the refinery.”  (Id. at 1420.)  No such
evidence has been presented here.  Rather, the evidence that Defendant’s products
may have been delivered to the Decedent’s work sites on three occasions over an
almost thirty year period is not sufficient to warrant a reasonable inference that the
Decedent was exposed to Defendant’s products.  At most the evidence creates a
possibility of exposure.  However, the “mere ‘possibility’ of exposure does not create a
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triable issue of fact.”  (Andrews , supra, 138 Cal.App.4   at 108.)  Indeed, as in other
cases, this “limited circumstantial evidence of exposure [is] insufficient to create a
triable issue of fact.”  (Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1238-1239,
citing McGonnel v. Kaiser Gypsum Company, Inc. (2002) 98 Cal.App.4th 1098, 1105.)
[while it was “at least within the realm of possibility” that the decedent encountered a
wall with the defendant’s asbestos containing product during the decedent’s 24 years
or employment, the mere ‘possibility’ was insufficient to create a triable issue of fact
regarding causation.].)  As a result, while Plaintiffs did not specifically argue that a
triable issue of fact existed, to the extent they cited to the job records produced at
Defendant’s PMK’s deposition, the evidence failed to demonstrate the existence of a
triable issue of material fact.

Finally, the Court notes that Plaintiffs appeared to attempt to cite their own discovery
responses in responding to the Defendant’s separate statement of undisputed material
facts.  For example, UFs 20-22 state that Plaintiffs failed to identify specific facts and
documents to support their claims and cited Plaintiffs’ discovery responses.  In
response Plaintiffs purport to dispute the facts by citing to the same discovery
responses.  This does not create a triable issue of material fact as the Court already
discussed above that the responses are boilerplate and do not provide specific facts,
witnesses, and documents.

In sum, the motion for summary judgment is granted on the basis that Plaintiffs cannot
show causation.

Given the above, the Court need not address the separate motions for summary
adjudication directed to the individual causes of action.

Defendant’s evidentiary objections are overruled.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by Local Rule 1.06(D).  Defendant’s counsel is ordered to notify Plaintiffs’
counsel immediately of the tentative ruling system and to be available at the hearing,
in person or by telephone, in the event Plaintiffs’ counsel appears without following the
procedures set forth in Local Rule 1.06(B).

Defendant’s counsel shall prepare for this Court’s signature an order and a judgment
of dismissal pursuant to CCP § 437c(g) and CRC Rule 3.1312.