Weber v. John Crane, Inc.

• Decision Date: 18 October 2006
• Docket Number: No. A111421.,A111421.
• Citation: 50 Cal.Rptr.3d 71,143 Cal.App.4th 1433
• Court: California Court of Appeals Court of Appeals
• Parties: Sheila M. WEBER, Plaintiff and Appellant, v. JOHN CRANE, INC., Defendant and Respondent.

50 Cal.Rptr.3d 71

143 Cal.App.4th 1433

Sheila M. WEBER, Plaintiff and Appellant, v. JOHN CRANE, INC., Defendant and Respondent.

No. A111421.

Court of Appeal, First District, Division 1.

October 18, 2006.

Paul, Hanley & Harley, LLP, Philip A. Harley, Deborah R. Rosenthal, Berkeley, for Plaintiffs and Appellants.

Hassard Bonnington, LLP, Philip S. Ward, Robert L. Nelder, Richard G. Katerndahl, San Rafael, for Defendant and Respondent.

STEIN, J.

A manufacturer or supplier of a product containing asbestos is sued for personal injuries allegedly resulting from the plaintiff's exposure to asbestos. The defendant moves for summary judgment, supporting the motion with the plaintiff's deposition testimony that he did not recall the defendant's name and did not recall whether he worked with any product bearing the defendant's name. The question is whether this evidence, without more, meets the defendant's initial burden of producing evidence that the plaintiff does not possess, and cannot reasonably obtain, evidence the defendant was a cause of the plaintiff's injuries, so that the burden shifts to the plaintiff to show a triable issue of fact exists as to causation. We hold that it does not, and reverse the judgment entered here.

BACKGROUND

On September 29, 2004, Joseph and Sheila M. Weber¹ brought suit against numerous manufacturers, suppliers and contractors. Plaintiffs alleged Joseph Weber (Weber) suffered mesothelioma from exposure to asbestos during the nearly 40 years he had worked as a machinist, equipment operator, and laborer at many different sites and for many different employers. Plaintiffs named John Crane, Inc. (John Crane) as a defendant, alleging Weber had been exposed to asbestos-containing products manufactured, sold or supplied by John Crane from 1960 to 1964, when he worked on or around naval vessels. The case was granted preferential status and set for trial on March 28, 2005. Weber's deposition was taken in November 2004.

On January 6, 2005, John Crane moved for summary judgment, asserting there was no triable issue of fact John Crane was a cause of Weber's mesothelioma. John Crane cited Weber's testimony that while he was familiar with the name "Crane," he had not heard of the name "John Crane, Inc." and did not associate any product or service with that name. He did not recall ever working with or around a product manufactured by John Crane. Weber assumed the Navy would have documents that would provide information as to whether he had worked with or around a John Crane product, but he had no personal knowledge of any such documents. He could not recall whether he ever had been exposed to asbestos as a result of anything that John Crane did or did not do. He also could not recall having heard of a company named Crane Co., or the Crane Packing Company, and could not recall if he ever worked with or around a Crane Packing Company product. Weber stated that did not recall knowing about any documents or witnesses that could provide information to that effect, and did not know if he had been exposed to asbestos as a result of anything the Crane Packing Company had or had not done. John Crane contended Weber's testimony showed that plaintiffs could not establish that John Crane was a cause of Weber's disease.

Plaintiffs argued in the trial court, and argue here, that John Crane did not produce sufficient evidence to shift to plaintiffs the burden of showing a triable issue of one or more material facts exists as to causation. They pointed out that John Crane had not conducted any "special discovery" designed to ascertain what evidence plaintiffs had beyond the statements of Weber himself. Plaintiffs also submitted the deposition testimony of Weber that he had worked as a machinist aboard the USS Hanson for four years, beginning in 1960, which work included repacking valves with a grayish white gasket material and putting packing back in pumps that had been disassembled. Weber named several coworkers or shipmates who had worked with him on board the Hanson. He had spoken to one a few weeks previously and to two others within the last two or three years. Weber stated he had addresses and telephone numbers for these persons, but he did not have that information with him at the deposition. There is no evidence that John Crane ever followed up on that information. There also is no evidence that plaintiffs affirmatively provided John Crane with the addresses or telephone numbers of these witnesses, although counsel at the deposition asked Weber to make that information available to his attorney. In addition, plaintiffs attached a list of identification witnesses plaintiffs intended to call against various defendants. The list included the names of two additional persons identified as plaintiffs' witnesses against John Crane. At the February 22, 2005 hearing on John Crane's motion, plaintiffs' counsel reported that the two listed individuals had been deposed, asserting that both had identified John Crane, presumably in connection with a product used on the Hanson.

At the hearing on John Crane's motion, the court stated, "[T]he cases are fairly clear that if a plaintiff has no idea about a connection between himself and the defendant, then that by itself can be enough to shift the burden." The court pointed out that plaintiffs had produced no evidence that the persons named by Weber had said anything to suggest they had information about Weber's exposure to John Crane's products. It reasoned that in the absence of any evidence these persons had some information that would tie John Crane to Weber's injuries, John Crane had no obligation to depose them. The court also pointed out that plaintiffs had not provided any contact information about those individuals. The court then explained, "[W]hat I am concerned about is we don't have any suggestion that anybody knows anything — in these moving papers, in this record knows anything about Crane. And the fact that three other people worked in the engine room in my view isn't enough to [satisfy plaintiffs'] burden on the hopes that one of them is going to know something about Crane." The court granted the defense motion, pointing out that plaintiffs could move for reconsideration if they had new deposition testimony linking John Crane to Weber's injuries. Plaintiffs' subsequent motion for reconsideration was denied.

DISCUSSION

I. Summary Judgment

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 that 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." (Code Civ. Proc., § 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 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. (Id., subd. (p)(2).)

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.... A prima facie showing is one that is sufficient to support the position of the party in question. [Citation.] No more is called for." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-851, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar).) 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. (Id. at pp. 853-854, 107 Cal.Rptr.2d 841, 24 P.3d 493.) However, "[s]ummary judgment law in this state ... 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.... The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence — as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (Id. at pp. 854-855, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

We review the trial court's summary judgment rulings de novo, viewing the evidence in a light favorable to plaintiff as the losing party, liberally construing the plaintiff's evidentiary submission while strictly scrutinizing the defendant's own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 100, 41 Cal.Rptr.3d 229 (Andrews).)

II. Causation

A plaintiff alleging asbestos-related injury has the burden of proving there is a "reasonable medical probability based upon competent expert testimony that the defendant's conduct contributed to plaintiff's injury." (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416, 37 Cal.Rptr.2d 902.) Factors relevant to assessing whether such a medical probability exists include frequency of exposure, regularity of exposure and proximity of the asbestos product to the plaintiff. (Ibid.) The plaintiff, accordingly, cannot prevail against a defendant without evidence that the plaintiff was...