Often times we, as attorneys, need subtle reminders of the power of burden shifting during discovery. We were provided that reminder in a recent, though unpublished, take-home asbestos appellate court opinion which upheld a trial court’s granting of a motion for summary judgment. (Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018)
The appellate court in Foglia agreed with the trial court decision that the plaintiffs could offer no admissible evidence that the decedent’s father worked around asbestos-containing materials. Plaintiffs, the Foglia family, brought a wrongful death claim against defendant Moore Dry Dock (“Moore”) on behalf of decedent Ron Foglia. The plaintiffs alleged that the decedent developed mesothelioma based on take-home exposure from decedent’s father, who allegedly worked as an electrician at a shipyard operated by Moore. Decedent admitted during his deposition that he had only “heard” through his aunt that his father worked at Moore.