In reversing a trial court’s grant of summary judgment to a defendant manufacturer, a recent California Court of Appeals decision reaffirmed the Lineaweaver standard, which allows a plaintiff to meet his burden of proof with circumstantial evidence. The burden of rejoinder therefore remained on the moving defendant to prove a negative proposition; i.e., that it did not manufacture asbestos-containing products to which a plaintiff was exposed.
In Turley, v. Familian Corporation, plaintiffs Keith and Ann Turley filed a complaint against some 50 defendants alleging that Mr. Turley had asbestos-related disease as a result of exposure to asbestos-containing products, including valve gaskets, during his employment at Pacific Gas & Electric Company (PG&E). Defendant Familian Corporation (Familian) moved for summary judgment on the grounds that plaintiffs could not establish that Mr. Turley was exposed to any Familian-related product or that Familian caused his alleged asbestos-related disease. After continuing the motion to allow the deposition of Mr. Turley’s co-worker, Paul Scott, the court found that Mr. Scott could only speculate as to whether any particular gasket or packing material to which Mr. Turley was exposed had been manufactured by Familian or contained asbestos. Reasoning that Mr. Scott’s deposition testimony (which Familian presented with its reply) prevailed over contrary declarations attached to the plaintiffs’ response, the trial court awarded summary judgment to Familian.
On appeal, the First Appellate District of the California Court of Appeals held that the trial court had abused its discretion by requiring plaintiffs to meet an incorrect legal standard. The court first noted that in the context of asbestos-related injuries, the Lineaweaver standard requires a plaintiff to establish “some threshold exposure to the defendant’s defective asbestos-containing products” and “a reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.” See Lineaweaver v. Plant Insulation Co., 31 Cal. App. 4th 1409, 1415-17 (1995). The court reviewed the facts in Lineaweaver and stated that even without direct evidence of exposure, a plaintiff could meet his burden of proof with sufficient circumstantial evidence to support “a reasonable inference of exposure.” The court found that Mr. Scott’s testimony was sufficient to create a triable issue of fact because the plaintiffs were not required to prove “a specific exposure to a specific product on a specific date or time.” Rather, it is enough to show that the defendant’s product was present at the work site and “sufficiently prevalent to warrant an inference that the defendant was exposed to it.” For example, Mr. Scott testified that he knew certain gaskets contained asbestos based on PG&E’s codes and other vendor numbers, as well as statements on packing slips and invoices. In addition, the Court of Appeals cited to the California Supreme Court’s decision in Webb v. Special Electric Co., 63 Cal. 4th 167 (2016), which reversed a defense judgment notwithstanding the verdict on the grounds that plaintiffs had introduced evidence that the plaintiff was exposed to dust from Johns-Manville products containing trace amounts of crocidolite at the same time that the defendant was supplying crocidolite asbestos to Johns-Manville.
Moreover, the Court of Appeals disagreed that Mr. Scott’s deposition testimony contradicted his declaration regarding (1) the procedures and processes for ordering, procuring, distributing, and using gaskets, (2) his personal observations as to Mr. Turley’s presence in the immediate vicinity of mechanics replacing valve gaskets, and (3) his personal knowledge about the types of gaskets he ordered from Familian, how frequently he ordered products from Familian, and how those products were used. Without a “clear and unambiguous” contradiction, it was an error to disregard Mr. Scott’s declaration.
The Court of Appeals also ruled that it was an error for the trial court to rely on deposition testimony submitted for the first time on reply, which denied plaintiffs an opportunity to respond to Familian’s arguments and to correct the trial court’s misunderstanding of the applicable standards.
After Turley, it is becoming increasingly clear that plaintiffs in California may rely on circumstantial evidence to create a triable issue of material fact. As a practice point, defendants would also be advised to take early discovery of persons identified by plaintiffs as having knowledge of the presence of asbestos-containing products, however circumstantial that knowledge may be.