Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 439964
Marchiano, P.J.
David Setterberg (Setterberg) and Joanne Setterberg appeal a judgment entered in favor of defendant Metalclad Insulation Corporation (Metalclad), which followed an order granting Metalclad’s motion for summary judgment. Setterberg contends he made a sufficient showing to withstand summary judgment. As discussed below, we agree and reverse.
Background
The undisputed facts for purposes of the motion show that, in 1968, Metalclad supplied 542 cartons of Unibestos—a type of piping insulation containing asbestos—to Mare Island Naval Shipyard (MINS). This shipment was cleared for use in 1969, and at least part of it was designated for installation in each of the reactor areas of four nuclear powered submarines under construction at that time—the USS Guitarro, the USS Pintado, the USS Drum, and the USS Hawkbill. Construction of all four submarines was completed by 1972.
Between 1975 and 1985, Setterberg worked as a pipe fitter at Puget Sound Naval Shipyard (PSNS). During this period he helped to provide temporary services to vessels that docked at PSNS for maintenance or repair. In particular, he would make connections in various compartments of a vessel in order to provide air, ventilation, water, and steam from dockside sources, and then change, monitor, and ultimately dismantle these connections. In 1978, Setterberg was certified to do such work in nuclear reactor areas. These areas required the installation and maintenance of multiple temporary services.
Each of the four submarines docked at PSNS during the time Setterberg worked there. Setterberg worked on all of them. While working in the reactor area of the USS Hawkbill over a period of several weeks, Setterberg observed other workers removing piping insulation. Setterberg was in close proximity to this work.
On March 30, 2005, Setterberg filed a complaint alleging he had been diagnosed with lung cancer resulting from asbestos exposure. He sought damages for such exposure against numerous defendants. He claimed that Metalclad was liable for such exposure based on theories of negligence, products liability, false representation, and premises liability. His wife, Joanne Setterberg, joined in his claims against Metalclad, seeking damages for loss of consortium.
Following discovery, which included a deposition of Setterberg, Metalclad filed a motion under Code of Civil Procedure section 437c, seeking summary judgment and, alternately, summary adjudication. Metalclad’s separate statement of material facts referred, among other things, to the following portions of Setterberg’s deposition. Asked to “recall when” he worked on USS Guitarro, Setterberg said he was “guessing early Eighties.” When asked if he had “work[ed] in the engine spaces,” he replied, “I don’t think so.” Similarly, he was asked “what years” he worked on the USS Drum, and replied “[e]arly Eighties, I believe.” When asked if he had “ever enter[ed] the reactor compartment” of that vessel, he responded, “I don’t think so.” Asked to “recall when” he had worked on the USS Pintado and whether he “ever ha[d] to go into the reactor compartment,” Setterberg said “[s]ometime in the Eighties” and “I don’t recall,” respectively. Finally, with regard to the USS Hawkbill, Setterberg was asked to “recall when” he had worked on that vessel and replied “[e]arly to mid-Eighties, I believe.” When asked if he could “describe [the piping] insulation” he had observed being removed from the reactor area of that vessel, he stated it was “[j]ust white insulation, probably half to three-quarter inches thick. Some of it was rigid, and some of it was pads.”
Further statutory references are to the Code of Civil Procedure unless otherwise indicated.
Metalclad’s separate statement also referred to deposition testimony taken in other asbestos cases. In one, the deponent described asbestos insulation other than Unibestos as “white, chalky with . . . cottony like fiber content holding it all together,” whereas he described Unibestos as “kind of a grayish brownish color . . . [that] was a little bit more of a substantial product that had kind of a heavier consistency.” A second deponent described Unibestos asbestos insulation as “grayish-brown . . . coarse fibrous-looking material,” and stated that it looked “completely different” from Kaylo, another asbestos product, which he described as “an off-white, chalky, firm material.”
Metalclad argued Setterberg’s deposition testimony showed he had not been in the reactor areas of the USS Drum and the USS Pintado. As for his work on the USS Hawkbill, he had observed the removal of asbestos material from the reactor area of that vessel some 10 years after the initial installation of Unibestos. Further, his description of the insulation he saw—as “just white”—was not consistent with the appearance of Unibestos insulation described by earlier deponents, but was, to the contrary, consistent with the appearance of non-Unibestos asbestos products. Metalclad therefore reasoned that Setterberg could not prove the element of causation with respect to his negligence and product liability claims—that is, he could not produce evidence showing he had been exposed to the particular brand of asbestos insulation that Metalclad had provided for installation on the four submarines.
Metalclad otherwise argued that Setterberg could not prove that Metalclad had made any representation concerning Unibestos, or that he had worked on premises controlled by Metalclad. Hence, he could not prove all elements of his misrepresentation and premises liability claims, respectively. Since Setterberg could not prove any of his four claims, Metalclad further contended that Joanne Setterberg could not prove her derivative claim for loss of consortium.
In opposition to the motion, Setterberg submitted four declarations. In the first, Setterberg himself averred that the insulation he had observed being removed from the reactor area of the USS Hawkbill had been “painted white,” and that he could not recall the color of the insulating material itself. He observed that the removal of the insulation, which was carried on close to where he worked, created visible dust. He stated that, while he had no specific recollection of being in the reactor areas of the USS Pintado and the USS Drum, he was reasonably certain that he must have been in these areas because he was required to work in such areas after 1978. He said he recalled working around “or adjacent to” the reactor area of the USS Guitarro. He also averred that after the time of his deposition, he referred to a list showing the specific dates during which various vessels, including the four submarines, had docked at PSNS for maintenance or repair. Having thus “refresh[ed his] memory” he averred he had worked on all four submarines “in the late 1970’s” and had also worked on the USS Hawkbill and the USS Drum “in the early 1980’s.”
A second opposing declaration was that of Robert Stemmer, the plaintiff in another asbestos case in the same court. Stemmer averred he had worked on the four submarines at MINS during their construction over a period of years, from 1969 to 1972. He stated these vessels were nearly identical in construction, and each had a central corridor or tunnel that all the workers used to carry materials to their work areas. The reactor area, located near the center of the vessel, was accessed through this corridor. To reduce clutter in the work areas, workers typically removed materials from their packaging before bringing them on board. Thus, insulation material carried through the corridor to the reactor area would be outside its carton, either in a plastic bag or uncovered. Before the time when they became operational, the reactor areas were not sealed off from the corridor.
Setterberg’s third opposing declaration was that of Charles Ay, a certified “asbestos consultant,” who had worked for some 20 years as an insulator at Long Beach Naval Shipyard (LBNS). Ay stated that, as a shipyard insulator he had “worked with Unibestos on naval ships” and had knowledge of that product. He averred that the installation of Unibestos on ships created “large amounts of respirable asbestos dust.” Such dust would be released when the material was cut and attached to pipes, when clamps, wire, and coverings were applied to hold the material in place, and when, upon completion, the area was swept. Any removal of Unibestos after its installation would also create such dust. Finally, Ay averred that, based on his experience as a shipyard insulator, he was familiar with “the typical rate of replacement of pipe insulation on board naval vessels.” Because piping insulation was generally removed only when it had been damaged or when it was necessary to access the underlying pipe, he stated it was “not uncommon” for it to remain in place for “over five years.” He gave the opinion that, given the completion date of the submarines in 1972, and the extensive amount of Unibestos initially installed in the reactor areas, it was probable that some portion of that insulation would have been still intact “at least into the late 1970’s.”
Setterberg’s final opposing declaration was that of Kenneth Cohen, a “recently retired . . . industrial hygienist” who averred he had been “often called upon to evaluate toxic exposures (including asbestos).” He stated he had “specific knowledge and experience with the levels of asbestos exposure to shipyard workers and workers on board Navy ships during the 1940’s, 1950’s, 1960’s, and 1970’s, and including individuals working in the engine rooms and boiler rooms of Navy ships,” and that he had “studied how asbestos is released into the air from these products, and how it behaves in air once released.” Cohen averred he had tested “mothballed” vessels and found “airborne asbestos” at levels presenting a “significant hazard” to individuals on the vessel, which “would have been higher” on a vessel in operation or undergoing maintenance or repair. He stated that such testing on submarines would produce similar results, “especially given [their] closed nature and smaller size.”
Cohen further stated that “research into the physical nature of asbestos” indicated that asbestos fibers, once released, will eventually settle “given still air,” but that “minimal energy,” such as the air turbulence created by human traffic and the movement of machinery, was sufficient to cause re-suspension of settled fibers. Cohen discussed a number of specific environmental tests and studies in support of this concept of periodic re-suspension of settled fibers. He stated he had reviewed Setterberg’s deposition testimony and the above-mentioned declarations of Stemmer and Ay. Given this information and his experience and expertise regarding asbestos fibers, he gave the opinion, “with reasonable scientific certainty, appropriate to the field of industrial hygiene,” that Setterberg had been “exposed to hazardous and unsafe levels of asbestos fibers and dust from multiple sources, including the asbestos-containing Unibestos insulation material installed in the reactor areas of the four submarines . . . especially . . . given the high friability of thermal insulation and the fact that [Setterberg had] worked in the reactor compartments near insulated pipes on [the] four submarines.” He offered his opinion that loose asbestos fibers and dust, which would have been generated by the initial installation of the Unibestos insulation on the four vessels, and by any subsequent disturbance or removal of that insulation, would have remained in the “air spaces” of the reactor areas and adjacent tunnel areas, and that Setterberg would have been exposed to such fibers and dust whenever he worked aboard one of the four submarines during the period of 1975 to 1983.
Setterberg’s argument in opposition to Metalclad’s motion was essentially that his opposing declarations were sufficient to raise a triable issue of material fact as to whether he had suffered exposure to asbestos fibers and dust from Unibestos insulation that Metalclad had supplied.
In its reply to the opposition papers, Metalclad claimed that Setterberg’s declaration contradicted his earlier deposition testimony, particularly with respect to the dates that he worked on the four submarines, his having worked in all four reactor areas, and the color of the insulation material he had observed being removed from the reactor area of the USS Hawkbill. Metalclad argued the court should therefore give Setterberg’s deposition testimony more credibility and disregard the contradictory statements in his subsequent declaration. Metalclad additionally objected to the declarations of Ay and Cohen. Its position was that neither Ay nor Cohen had demonstrated any personal knowledge of the four submarines in issue, and hence their declarations were speculative, lacked any factual basis, and were otherwise irrelevant and inadmissible.
Alternatively, Metalclad argued that, if the court determined that Setterberg had raised a triable issue with respect to his exposure to the Unibestos it had supplied to MINS, the court should nevertheless grant summary adjudication as to Setterberg’s claims against it based on misrepresentation and premises liability. (See fn. 2, ante.)
Following a hearing on December 30, 2005, the trial court granted Metalclad’s motion for summary judgment. The court’s formal order in effect accepted Metalclad’s argument that Setterberg could not prove he had been exposed to the Unibestos that Metalclad had supplied to MINS in 1968. However, in signing this order the court struck certain portions—which Metalclad had drafted—including language that would have sustained Metalclad’s evidentiary objections to Setterberg’s opposing declarations.
The ensuing judgment in Metalclad’s favor was filed February 1, 2006. This appeal followed. (§§ 437c, subd. (m)(1), 904.1, subd. (a)(1).)
Discussion
A. The Moving Party’s Burden
A defendant seeking summary judgment bears the initial burden of presenting evidence that provides a complete defense to the action or shows the plaintiff does not have or cannot obtain evidence to establish one or more essential elements of the cause of action. (§ 437c, subd. (p)(2); Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 849 (Aguilar).)
Exposure to a defendant’s product is a threshold issue in asbestos litigation. If there has been no exposure, there is no causation. (See Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655.) Metalclad’s motion rested solely on its effort to show that Setterberg did not and could not reasonably obtain evidence showing he had ever been exposed to the Unibestos supplied to MINS, and thus could not prove the essential element of causation in any of his causes of action. Setterberg’s first contention is that Metalclad never met this initial burden. He points to the following undisputed facts: Metalclad supplied Unibestos that was installed as piping insulation in the reactor areas of the four submarines; Setterberg worked on these submarines, and worked in the reactor area of the USS Hawkbill; and, while working in that area, was in proximity with other workers for several weeks as they removed piping insulation. The gist of Setterberg’s argument is that these undisputed facts were sufficient to render triable the issue of his exposure to Metalclad’s product.
We disagree. As noted above, it was undisputed that some portion of the shipment of Unibestos piping insulation, supplied to MINS by Metalclad in 1968, was installed in the reactor areas of four submarines at some point prior to their completion in 1972. Metalclad presented deposition testimony obtained from Setterberg, to the effect that he had worked on these submarines some 10 years later, in the early 1980’s, when they docked at PSNS, but he had worked in only one of the four reactor areas, and while working there for several weeks saw others remove piping insulation that he described as “just white insulation.” Metalclad also presented deposition testimony of third parties indicating that Unibestos was gray-brown in color, whereas other asbestos piping insulation was white in color.
We review this supporting evidence independently (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476 (Merrill)), and consider it sufficient to show that, at the times Setterberg worked on the submarines, he was exposed to asbestos piping insulation in a reactor area on only one occasion, and his description of that insulation indicated it was not Unibestos. This, in turn, satisfied Metalclad’s initial burden to show that Setterberg would be unable to prove he had actual exposure to its product.
B. The Opposing Party’s Burden
1. Introduction
Once a defendant has met its initial burden—in this case a showing that the plaintiff cannot prove an essential element of his cause of action—the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. (See § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield, supra, 25 Cal.4th 826, 849.) Again, we review the sufficiency of that evidence independently. (Merrill, supra, 26 Cal.4th at p. 476.)
2. The Setterberg Declaration
Metalclad argues we may not properly consider evidence set out in Setterberg’s opposing declaration, at least to the extent that it is contradicted by his earlier deposition testimony. The authority for this proposition stems from D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1 (D’Amico). In that decision, the Supreme Court stated the general maxims of summary judgment law. Summary judgment is proper when the supporting affidavits are sufficient to sustain a judgment in the moving party’s favor, and the opposing affidavits do not show facts sufficient to raise a triable issue. In examining the sufficiency of these affidavits, a court should construe those of the moving party strictly and those of the opposing party liberally, because summary judgment is a drastic procedure to be used with caution. On the other hand, this rule of caution should not be allowed to frustrate the summary judgment procedure when the opposing party seeks to screen a lack of triable issues. (Id. at p. 20.) Thus the “stern requirements” regarding the construction of affidavits are “relaxed or altered” when an admission obtained through discovery demonstrates there is no factual issue to be tried. (Id. at p. 21.) The court reasoned that an admission has a “high credibility value” that is due greater deference than statements set out in an affidavit, especially when the admission is a product of discovery procedures designed to elicit material facts. (Id. at pp. 21-22.) Subsequent case law has formulated these statements into the principle that “[a]dmissions or concessions made during the course of discovery govern and control over contrary declarations lodged at a hearing on a motion for summary judgment.” (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1613.)
The Supreme Court in D’Amico cited to King v. Andersen (1966) 242 Cal.App.2d 606 (King) to illustrate a proper application of this principle. (D’Amico, supra, 11 Cal.3d at p. 21.) In King, a plaintiff sought damages for false arrest and assault, yet at his deposition testified that the defendants had not used any force. Later, he submitted an opposing declaration in which he averred defendants had used unnecessary force. (King, supra, 242 Cal.App.2d at pp. 609-610.) In affirming the summary judgment for the defendants, the Court of Appeal declined to construe his opposing declaration liberally—in effect disregarding it entirely—because it found his prior deposition testimony to be a “clear and unequivocal admission” that he could not “withdraw without committing the grossest perjury.” (Id. at p. 610 (italics added).)
In King, supra, 242 Cal.App.2d 602, the plaintiff’s deposition testimony was clearly an admission against interest, going to the heart of his cause of action. This court has applied the principle distilled from D’Amico in similar circumstances. That is, we affirmed a summary judgment in favor of a defendant in an action for personal injury, when the plaintiff submitted an opposing declaration stating that she had suffered physical injury, but in a previous deposition had testified unequivocally she had not suffered any physical injury. (Leasman v. Beech Aircraft Corp. (1975) 48 Cal.App.3d 376, 382-384.) The admissions at issue in D’Amico were of an analogous nature: they were binding admissions submitted in response to a request for admissions. (See D’Amico, supra, 11 Cal.3d at pp. 10-11; see § 2033.410, subd. (a).)
The principle taken from D’Amico, founded on the “high credibility value” of an admission obtained through discovery, applies properly when the discovery response is a judicial admission or is clearly and unequivocally an evidentiary admission against interest. But this court has previously cautioned against a broader application. “[A]n uncritical application of the D’Amico [principle] can lead to anomalous results, inconsistent with the general principles of summary judgment law . . . [hence a] summary judgment should not be based on tacit admissions or fragmentary and equivocal concessions, which are contradicted by other credible evidence.” (See Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482.)
The deposition responses at issue here we have summarized above. They are not binding or judicial admissions. Nor are they clearly and unequivocally admissions against interest. Placed in context they are, at best, “fragmentary and equivocal concessions” made in the course of an extensive deposition involving multiple defendants, in which Setterberg attempted to recall specific dates and details occurring over the period of 10 years that he worked at PSNS, a period that ended 20 years before the deposition. Moreover, Setterberg’s subsequent averments do not flatly contradict his deposition responses. He explains the discrepancy in dates—that he worked on the submarines in the late 1970’s, as well as the early 1980’s—by averring that he saw a compilation of docking dates after his deposition, and that this list refreshed his memory. Similarly, he avers to the fact that his duties, beginning in 1978, required him to work in reactor areas, to explain his claim that he must have worked in the reactor areas of the USS Guitarro, the USS Pintado, and the USS Drum, despite his lack of specific recollection. Finally, his averment that the insulation he saw was “painted white,” is not necessarily inconsistent with the deposition response describing the insulation as “white.”
In sum, we conclude the D’Amico principle does not apply to preclude our consideration of Setterberg’s opposing declaration.
2. The Ay and Cohen Declarations
Metalclad argues that Ay never worked at either MINS or PSNS, his work involved ships rather than submarines, and he offered no facts to support the opinions he expressed concerning the rate at which the U.S. Navy generally replaced piping insulation on vessels. Similarly, Metalclad complains that Cohen never conducted tests on the four submarines or on any submarine, and he failed to support his opinions with specific facts. Metalclad concludes that we should not consider these declarations because they have no foundation, consist of mere speculation, and lack any evidentiary value.
Metalclad also objects to Stemmer’s declaration on relevancy grounds. This objection was not raised below and is therefore waived. (§ 437c, subd. (b)(5); see Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, 569.)
In support of these arguments, Metalclad relies on McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098 (McGonnell), and Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96 (Andrews). In McGonnell, the plaintiffs alleged decedent had been exposed to a number of asbestos products over the course of many years while working as a plumber and pipe fitter at various construction projects. In opposing defendant’s motion for summary judgment, they submitted the declaration of a “certified industrial hygienist,” who opined it was more likely than not that the decedent had been exposed to asbestos while working on a particular construction project, but the expert mentioned nothing that tied such exposure to the defendant’s product. In an attempt to rectify this omission, the plaintiffs submitted a supplementary declaration consisting of four paragraphs. The expert expressed an opinion that it was more likely than not that the decedent had been exposed to asbestos in the defendant’s products. There was, however, no basis for this opinion other than the expert’s vague reference to a review of “materials submitted in opposition” and to an unspecified statement of the “job specifications” for the particular project that indicated a projected use of asbestos products. The expert made no mention whether the otherwise unidentified statement of specifications proposed to use defendant’s product. Division Four of this court found the expert declaration to be too speculative to raise a triable issue in the absence of such facts. (McGonnell, supra, 98 Cal.App.4th 1098, 1106.)
In Andrews, the plaintiff alleged that, while in the boiler room of a U.S. Navy vessel in 1966, he had been exposed to asbestos fibers from gaskets in condensers. Evidence indicated the condensers manufactured by defendant had been installed in the vessel 21 years earlier, in 1945, and had remained in place at least until 1950. In opposing the defendant’s motion for summary judgment, the plaintiff submitted expert declarations that were executed, as in this case, by Ay and Cohen. Ay averred he had worked on the ship in question at LBNS on multiple occasions during the 1960’s. Ay stated that, during that time, the condensers on board used gaskets containing asbestos. It was necessary to replace such gaskets every few years, so it was likely the gaskets originally installed in the condensers by defendant had been replaced before plaintiff came on board in 1966. He expressed the opinion that the process of replacing asbestos gaskets would more likely than not release asbestos fibers in the air. (Andrews, supra, 138 Cal.App.4th at pp. 108-109.) Cohen agreed that the removal of asbestos gaskets would release fiber in the air, and, as in this case, he discussed how such fibers, once created, would settle in still air but would re-suspend whenever disturbed by turbulence. (Id. at pp. 110-111.) Division Two of this court interpreted plaintiffs’ theory of liability as one that rested on evidence that defendant’s condensers had been on board the ship until 1950, and that the fibers released by the replacement of asbestos gaskets in these condensers would have still been present, and periodically re-suspended, when the decedent came on board in 1966. The court concluded the plaintiff’s evidence was insufficient to raise a triable issue of material fact. Significantly, however, it did not reach this conclusion after rejecting Ay’s or Cohen’s declarations on grounds they were too speculative or lacked foundation. Instead, the court pointed out that plaintiff’s evidence, including these declarations, still failed to show that the defendant’s condensers had remained in place after 1950. It also failed to establish that the defendant’s condensers had used asbestos gaskets—Ay’s opinion was based on a familiarity with the gaskets used in the condensers that he worked on during the 1960’s. Thus, the evidence was not sufficient to show that the replacement of gaskets in defendant’s condensers had released asbestos fibers. It was the absence of such “important, basic facts” that led the court to conclude the plaintiff’s evidence was insufficient to create a triable issue. (Id. at pp. 108-112.)
It is true that, in dicta—based on an assumption that plaintiffs had evidence linking defendant’s condensers to the release of fibers—the court in Andrews regarded Cohen’s theory of re-suspension to be too speculative to prove that such fibers would have remained on board and periodically re-suspended from 1950 to 1966. (See Andrews, supra, 183 Cal.App.4th at pp. 112-113.) However, in that case Cohen submitted a short three-page declaration that failed to specify in detail the tests, reports, and literature supporting his opinion concerning the re-suspension of asbestos fibers. In this case Cohen appears to have learned his lesson. His 15-page declaration does specify and describe the more significant studies supporting his opinion.
McGonnell and Andrews are plainly distinguishable, and do not compel the conclusion that we should disregard Ay’s and Cohen’s declarations based on Metalclad’s objections. Ay is competent to testify as to his experience working on ships at LBNS, including opinions based on that experience, such as the rate of piping insulation replacement or the creation of asbestos dust when such insulation is installed or removed. Cohen appears to be similarly qualified to offer his opinions based on studies that concern the physical properties of asbestos fibers once they are released in a particular environment. The weight or value of their opinions as applied to the particular facts of this case is for the trier of fact to determine. For the purposes of determining the propriety of the summary judgment, we will construe them liberally. (D’Amico, supra, 11 Cal.3d at p. 21.)
3. Conclusion
Metalclad’s arguments overall suggest that, even if we consider all the evidence presented by Setterberg, the evidence nonetheless still fails to show a triable issue of material fact as to his exposure to the Unibestos that it supplied to MINS. Again, they argue by analogy to the decisions in McGonnell and Andrews.
In reviewing Setterberg’s evidence we keep in mind that something more than a “mere possibility” of exposure to the defendant’s product is required. The evidence must be sufficient to allow the trier of fact to make a finding that there was such exposure. (See Andrews, supra, 138 Cal.App.4th at p. 108.)
As we have noted, it is undisputed that Metalclad supplied Unibestos piping insulation to the U.S. Navy and that part of this shipment was installed between 1969 and 1972 in the reactor areas of the four submarines. The fact that Unibestos is, or was, gray-brown in color is evidently undisputed as well. To recapitulate the pertinent portions of Setterberg’s evidence, we note that Stemmer, while working on the construction of these vessels at MINS, observed that parts or material used in construction were typically unpacked before being carried on board. He also observed that each reactor area was located near the middle of a central corridor, and that these areas were not sealed off from that corridor during the construction. Ay was familiar with Unibestos piping insulation as it was used on ships he worked on at LBNS. In his experience, any cutting or handling of this insulation during its installation or removal resulted in “large amounts” of dust. He observed that piping insulation generally remained in place for “over five years” after its installation, unless it was damaged or had to be removed to access a section of underlying pipe. Setterberg worked on each of the four submarines during a period spanning the late 1970’s and the early 1980’s, whenever they docked at PSNS for maintenance or repairs. His duties required that he work in most areas of any given vessel and, beginning in 1978, these included reactor areas. Once, while working in the reactor area of the USS Hawkbill, Setterberg observed others remove piping insulation. He was in close proximity to that work, and saw that it produced visible dust. He could not tell the color of this particular insulation, as it was “painted white.” Cohen, an industrial hygienist, expressed his opinions based on the theory that asbestos dust, once created within a room or other interior compartment, eventually settles on surfaces, but tends to re-enter the air for a period of time whenever the surfaces are disturbed by human traffic or other sources of “minimal energy” or turbulence. During such periodic re-suspension asbestos tends to spread beyond the area where it was created. Given these general properties of asbestos dust, and given the information provided in the other opposing declarations, Cohen was of the opinion that Setterberg had, “with reasonable scientific certainty,” been exposed to asbestos dust during the times he worked on the four submarines between 1975 and 1983, at least whenever he worked in or near one of the submarine’s reactor areas. Further, since there was no evidence of containment procedures, it was his opinion that the dust to which Setterberg was exposed would have included dust created by the initial installation and any subsequent removal of the Unibestos supplied by Metalclad.
We bear in mind the principle that if the opposing party’s evidence or inferences raise a triable issue of material fact, the motion should be denied. (Aguilar, supra, 25 Cal.4th at p. 856.) We are satisfied that this evidence, unlike that which was presented in McGonnell and Andrews, is sufficient to permit the trier of fact to find that Setterberg was exposed to asbestos dust created by the installation or removal of the Unibestos supplied by Metalclad. (See Andrews, supra, 138 Cal.App.4th at p. 108.) It is, in turn, sufficient to raise a triable issue of material fact. The trial court relied solely on a contrary determination of this issue when it granted summary judgment in favor of Metalclad. Accordingly we conclude the court erred making that order.
Disposition
The judgment is reversed.
We concur: Stein, J., Margulies, J.