Harris v. Thomas Dee Eng'g Co.

• Decision Date: 02 September 2021
• Docket Number: A153106
• Parties: Beth HARRIS et al., Plaintiffs and Appellants, v. THOMAS DEE ENGINEERING CO., INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

68 Cal.App.5th 594

283 Cal.Rptr.3d 637

Beth HARRIS et al., Plaintiffs and Appellants,

v.THOMAS DEE ENGINEERING CO., INC., Defendant and Respondent.

A153106

Court of Appeal, First District, Division 5, California.

Filed September 2, 2021

Certified for Partial Publication.^*

The Arkin Law Firm, Sharon J. Arkin ; Levin Simes LLP, William Levin, San Francisco, and Timothy Pearce, for Plaintiffs and Appellants.

WFBM, LLP, Michael T. McCall, Orange, Margaret F. Mahaffey, San Francisco, and Anne C. Gritzer, for Defendant and Respondent.

SIMONS, ACTING P.J.

In this asbestos case, Beth Harris and her children (Plaintiffs) appeal the trial court's grant of summary judgment in favor of defendant Thomas Dee Engineering Company (Thomas Dee). We conclude that the trial court erred in its evaluation of an expert declaration submitted by Plaintiffs in opposition to Thomas Dee's motion and that there is a triable issue whether Thomas Dee's refractory work on a United States Navy ship exposed decedent Michael Harris to asbestos. Accordingly, we reverse the grant of summary judgment.¹

BACKGROUND²

Mr. Harris was diagnosed with mesothelioma

in March 2014. Two months later, he and his wife Beth Harris filed a personal injury complaint against numerous defendants alleging causes of action for negligence, strict liability, and loss of consortium. Mr. Harris passed away in October 2014. In July 2015, Mrs. Harris and her children amended the complaint to assert wrongful death and survival claims.

In June 2017, Thomas Dee moved for summary judgment on the issue of exposure. The motion stated, "This motion for summary judgment is made ... on the grounds that the undisputed evidence establishes that plaintiffs are unable to establish the essential element of causation in that plaintiffs are unable to establish that plaintiffs’ decedent was exposed to asbestos by an act or omission of [Thomas] Dee as alleged in the complaint. Because plaintiffs will be unable to establish any causal connection between plaintiffs’ injuries and [Thomas] Dee's claimed operations as a boiler refractory contractor, plaintiffs’ claims fail as a matter of law." Thomas Dee also moved for summary adjudication on strict liability and punitive damages issues.

Plaintiffs’ claims arise out of Mr. Harris's alleged exposure to asbestos while he served in the U.S. Navy, specifically during repairs aboard the U.S.S. San Jose at the Triple A Machine Shop in San Francisco during Fall 1973. From August 1973 to May 1974, Mr. Harris worked on the U.S.S. San Jose as a hull maintenance technician. Mr. Harris's duties included maintaining and repairing the ship's fire system, which ran through the entire ship. In addition to his daily shift working as a hull technician, Mr. Harris was responsible for " ‘standing watch ’ " four hours about every other day. His watch duties required him to " ‘patrol every part of the ship’ " to check for leaks and fires, among other things.

Thomas Dee is a contractor that works with "refractory brick, mortar and castable cement situated on the inside of boilers." Thomas Dee performed repairs on boilers aboard the U.S.S. San Jose during the Fall 1973 repair period. The first part of the job required Thomas Dee to " ‘tear out’ " the existing insulation and refractory material. Plaintiffs’ expert opined that the "approximately 200 feet of insulation block removed from the three boilers ... more likely than not contained asbestos."

During the Fall 1973 repairs, Mr. Harris witnessed non-Navy personnel performing work aboard the ship. Mr. Harris testified he worked in the boiler room and also saw other people working in the boiler room. He did not see anyone working on the boilers.

William Ewing, a certified industrial hygienist, was Plaintiffs’ expert witness regarding asbestos exposure. In his deposition, he was asked about Mr. Harris's testimony that he did not see any boiler work performed on the U.S.S. San Jose. Mr. Ewing testified, "If he wasn't present when the work was done, then I don't think there'd be any issue regarding any exposure." Despite that testimony, in a declaration submitted by Plaintiffs in opposition to the summary judgment motion, Mr. Ewing opined that Mr. Harris "did not need to be present at the exact time that the insulation block was being removed, swept up, and/or installed by Thomas [Dee] workers to be exposed." Instead, the removal of the asbestos-containing refractory materials from the boilers would have exposed Mr. Harris to asbestos whenever he was in the boiler room because asbestos fibers can remain suspended for up to 80 hours before settling out of the air and because the fibers can be continuously re-suspended through a phenomenon known as "re-entrainment." Mr. Ewing stated, "This cycle of re-suspension is well-documented and is generally accepted in the industrial hygiene field.... There is near universal agreement that asbestos fibers persist in the environment almost indefinitely and thus can represent a continuous potential source of exposure when present in buildings or other enclosed spaces."

In moving for summary judgment, Thomas Dee argued that, because Mr. Harris testified he did not see anyone working on the boilers, and, because Plaintiffs’ expert testified Mr. Harris would not have been exposed to asbestos if he was not present when the work was being done, summary judgment should be granted. On reply, it argued Mr. Ewing's declaration about the re-entrainment phenomenon had to be disregarded because it contradicted his deposition testimony and because an expert may not testify to opinions not disclosed during his or her deposition.

Following a hearing, the trial court granted Thomas Dee's motion for summary judgment. The court's order states: "Plaintiffs’ discovery responses do not specify any facts suggesting that they can produce admissible evidence that [Mr. Harris] was in the boiler room in which the ship's boilers were located, and where [Thomas] Dee would have performed its refractory work, while employees of [Thomas] Dee were manipulating asbestos-containing refractory materials, or at any specific time shortly after such work when such fibers might still be subject to exposure." With respect to Mr. Ewing's declaration, the court stated that it "rejects plaintiffs’ attempt to create a factual issue by offering [their expert's] ‘re-entrainment’ theory, disclosed in his declaration submitted in opposition to the instant motion. The declaration offers a new, previously not disclosed opinion that is contradicted by his deposition testimony." The court did not address Thomas Dee's summary adjudication issues, which were rendered moot by the grant of summary judgment.

The trial court entered judgment in favor of Thomas Dee. The present appeal followed.

DISCUSSION

Plaintiffs argue that the trial court erred in refusing to give weight to their expert's declaration and that the declaration demonstrates there is a triable issue whether Thomas Dee's activities exposed Mr. Harris to asbestos. We agree.

I. Governing Law and Standard of Review

Summary judgment is appropriate "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." ( Code Civ. Proc., § 437c, subd. (c).)³ "[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.... 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 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 107 Cal.Rptr.2d 841, 24 P.3d 493, fns. omitted ( Aguilar ).) In ruling on the motion, the court must draw all reasonable inferences from the evidence in the light most favorable to the opposing party. ( Id. at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

"The defendant is not required conclusively to negate an element of the plaintiff's cause of action. The defendant need only show the plaintiff cannot establish at least one element of the cause of action, such as by showing the plaintiff does not possess, and cannot reasonably obtain, needed evidence." ( Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1438, 50 Cal.Rptr.3d 71.) The burden then shifts to the plaintiff to show a triable issue of material fact exists. ( § 437c, subd. (p)(2).) "The plaintiff ... shall not rely upon the allegations ... of its pleadings ... but, instead, shall set forth the specific facts showing that a triable issue of material fact exists ...." ( Ibid. ) We review a decision on a summary judgment motion de novo. ( Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768, 107 Cal.Rptr.2d 617, 23 P.3d 1143 ( Saelzler ).)

II. The Trial Court Erred In Declining to Give Any Weight to Mr. Ewing's Declaration

As noted previously, the trial court "reject[ed] plaintiffs’ attempt to create a factual issue by offering" Mr. Ewing's declaration in opposition to Thomas Dee's summary judgment motion, because the re-entrainment theory of exposure was not disclosed in the expert's earlier deposition and because it was in conflict with his deposition testimony.⁴ The trial court erred.

We first reject Thomas Dee's contention that the trial court properly disregarded⁵ Mr. Ewing's declaration because the re-entrainment theory of exposure was not disclosed in his deposition. Thomas Dee relies on the decision in Jones v. Moore (2000) 80 Cal.App.4th 557, 95 Cal.Rptr.2d 216, which states, "When an expert deponent testifies as to specific opinions and affirmatively states those are the only opinions he intends to offer at trial, it would be grossly unfair and prejudicial to permit the expert to offer additional opinions at trial ." ( Id. at p. 565, 95 Cal.Rptr.2d 216 (italics added).) Jones and similar cases stand for ...