Andrews v. Foster Wheeler LLC

• Decision Date: 30 March 2006
• Docket Number: No. A108911.,A108911.
• Citation: 41 Cal.Rptr.3d 229,138 Cal.App.4th 96
• Court: California Court of Appeals Court of Appeals
• Parties: Paul ANDREWS et al., Plaintiffs and Appellants, v. FOSTER WHEELER LLC, Defendant and Respondent.

41 Cal.Rptr.3d 229

138 Cal.App.4th 96

Paul ANDREWS et al., Plaintiffs and Appellants, v. FOSTER WHEELER LLC, Defendant and Respondent.

No. A108911.

Court of Appeal, First District, Division 2.

March 30, 2006.

Brayton & Purcell, LLP, Allan R. Brayton, Gilbert L. Purcell, Lloyd F. LeRoy, Novato, Attorneys for Plaintiffs and Appellants — Paul Andrews and Eileen Andrews.

Carroll, Burdick & McDonough LLP, James G. Scadden, David M. Rice, Lee G. Sullivan, Jackson & Wallace, Julie Torres, San Francisco, Attorneys for Defendant & Respondent — Foster Wheeler LLC.

LAMBDEN, J.

Plaintiffs Paul and Eileen Andrews seek reversal of the trial court's grant of summary judgment in favor of defendant Foster Wheeler LLC (Foster Wheeler). We affirm the trial court's judgment because plaintiffs have not established a triable issue of fact regarding causation.

BACKGROUND

In September 2003, plaintiffs filed products liability claims in superior court in San Francisco against dozens of manufacturers, suppliers, and contractors for allegedly causing the asbestos-related disease suffered by Paul Andrews (Andrews), then 70 years old, as a result of exposure to asbestos during his years of employment. Among other things, the complaint set forth a history of Andrews's work as a laborer, deck hand, and gunner's mate for over 20 years at multiple naval facilities and on naval vessels, including the USS Brinkley Bass (Brinkley Bass). On October 14, 2004, plaintiffs filed an amendment to their complaint which identified Foster Wheeler as the entity sued under the fictitious name "DOE 1."

The trial court granted plaintiffs' motion below for trial preference and scheduled a trial date for approximately nine months after the filing of the original complaint. Foster Wheeler obtained three relatively short trial continuances, and then moved for summary judgment.

In support of summary judgment, Foster Wheeler contended, based on two undisputed facts, that plaintiffs had no evidence that Andrews was exposed to asbestos from any Foster Wheeler equipment. Foster Wheeler pointed out that Andrews had admitted in deposition that he had no knowledge of Foster Wheeler, of having worked with or in the presence of anyone working with Foster Wheeler products, or of ever being exposed to asbestos as a result of any action by or interaction with Foster Wheeler. Foster Wheeler also contended as an undisputed fact that plaintiffs did not identify any facts supporting their claim in their answers to Foster Wheeler's special interrogatories, which interrogatories sought all of plaintiffs' knowledge about Andrews's exposure to asbestos from Foster Wheeler products. We provide the details of plaintiffs' responses in the discussion, post.

In their opposition to Foster Wheeler's summary judgment motion, plaintiffs relied on a handful of facts about the Brinkley Bass and two expert declarations, from Charles Ay and Kenneth Cohen, which we also detail further in the discussion. Plaintiffs contended that Andrews, as a result of visits to the Brinkley Bass boiler room after his arrival onboard in 1966, had been exposed to asbestos fibers previously released into the air from asbestos-containing gaskets in Foster Wheeler condensers and then "re-entrained" into the air.

Foster Wheeler argued in its summary judgment motion reply that plaintiffs' re-entrainment theory was speculative as a matter of law; based on inadmissible evidence contained in Ay and Cohen's expert declarations, which inadmissibility Foster Wheeler challenged with expert declarations of its own; and failed to establish causation because the expert opinions lacked any reasoned explanation or factual basis.

The trial court granted summary judgment, finding that Foster Wheeler had met its initial burden of demonstrating that plaintiffs were not in possession of any evidence to support their claim, and that plaintiffs had failed to meet their burden of presenting admissible evidence that created a triable issue of fact. At hearing, the court stated: "The argument that given the unusual nature of asbestos fibers, some fibers from the original gasketing must necessarily have remained in the boiler room over the course of all of these overhauls, as a result of which Mr. Andrews must have been exposed to fibers that are 20 and 25 years old that have been sitting there and sort of lurking in the machinery is, in this court's view, unacceptably speculative."

This timely appeal followed.

DISCUSSION

Plaintiffs argue that the trial court erred by failing to find that Foster Wheeler did not meet its initial burden of production of evidence in support of its summary judgment motion, and by improperly weighing the evidence each side submitted via expert declarations in the course of concluding that plaintiffs' expert evidence was too speculative to support their claim. Both arguments lack merit.

I. Applicable Legal Standards

The trial court's summary judgment rulings are subject to de novo review. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 69, 81 Cal. Rptr.2d 360 (Scheiding).) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally, construing [his] evidentiary submission while strictly scrutinizing [Foster Wheeler's] own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769, 107 Cal. Rptr.2d 617, 23 P.3d 1143.)

"A motion for summary judgment must be granted if all of the papers submitted show `there is no triable issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law. In determining whether the papers show . . . there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, . . . and all inferences reasonably deducible from the evidence . . . .' (§ 437c, subd. (c).) A defendant has met its burden of showing a cause of action has no merit if it `has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show . . . a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show . . . a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists. . . .' (Id., subd. (o)(2);¹ [citations].)" (Scheiding, supra, 69 Cal.App.4th at p. 69, 81 Cal.Rptr.2d 360.)

As our Supreme Court has noted, "[s]ummary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar), accord, Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143 [burden shifts to the opposing party "upon a `showing' that one or more elements of the cause of action cannot be established"].) "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 opposing the motion in accordance with the applicable standard of proof." (Aguilar, at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493, fn. omitted.) Thus, "the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.) Circumstantial evidence supporting a defendant's summary judgment motion "can consist of `factually devoid' discovery responses from which an absence of evidence can be inferred," but "the burden should not shift without stringent review of the direct, circumstantial and inferential evidence."² (Scheiding, supra, 69 Cal.App.4th at p. 83, 81 Cal. Rptr.2d 360.)

To ultimately prevail in their underlying claim, plaintiffs would need to establish that Andrews's exposure to a product attributable to Foster Wheeler was to a reasonable medical probability a substantial factor in contributing to any asbestos-related disease suffered by him, pursuant to the standard of proof articulated in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 974-977, 67 Cal. Rptr.2d 16, 941 P.2d 1203. (See also Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 37 Cal.Rptr.2d 902 [discussing the substantial factor test with regard to claims involving asbestosis].) Relevant considerations include the "[f]requency of exposure, regularity of exposure, and proximity of the asbestos product to plaintiff . . . although these considerations should not be determinative in every case. [Citation.] Additional factors may also be significant in individual cases, such as the type of asbestos product to which plaintiff was exposed, the type of injury suffered by the plaintiff, and other possible sources of plaintiff's injury." (Lineaweaver v. Plant Insulation Co., supra, 31 Cal.App.4th at p. 1416, 37 Cal.Rptr.2d 902.) "The substantial factor standard is a relatively broad one, requiring only that the contribution of the individual cause be more than negligible or theoretical." (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 978, 67 Cal.Rptr.2d 16, 941 P.2d 1203.)

II. Foster Wheeler Met Its Initial Burden of Production

We first examine plaintiffs' contention that Foster Wheeler, as the...