Opinion
A100716.
7-28-2003
CAROLYN WRIGHT et al., Plaintiffs and Appellants, v. DEXTER CORPORATION, Defendant and Respondent.
In this wrongful death action based on exposure to asbestos products, the surviving spouse and heirs of John Wright (hereafter Wright) appeal a summary judgment dismissing their complaint against Dexter Corporation (hereafter Dexter). We reverse.
FACTUAL AND PROCEDURAL HISTORY
The plaintiffs seek damages arising from the death of Wright from mesothelioma on November 19, 1998. After serving four years in the United States Air Force, Wright worked for over thirty years in the aerospace industry. From February 1969 to September 1982, he was employed at a Hughes Aircraft manufacturing plant in Tucson, Arizona, which manufactured aerospace components for missile and rocket applications. The facility included a large production machine shop extending over several acres with hundreds of machine stations and operators. Wright worked as a project test engineer and, for a brief two-year period, as a manufacturing project manager at the plant. Plaintiffs claim that his death from mesothelioma was caused by exposure to asbestos fibers derived from aerospace adhesives used in the machine shop.
Following discovery, Dexter filed a motion for summary judgment based on the ground that there was no triable issue of fact to prove that Wright was exposed to asbestos-containing products that it had manufactured or supplied. The motion relied chiefly on declarations of three witnesses, Robert McMillin, Clyde McPherson, and Donald Porter, whom plaintiffs had designated as their sole product-identification witnesses as part of a stipulation between the parties made in open court. In nearly identical language, the witnesses averred that they did not know of "any products manufactured by Dexter Corporation used at any Hughes Aircraft Company facility." More specifically, they did not know "the brand names or manufacturers of any asbestos-containing products or materials" to which Wright may have been exposed at "any Hughes Aircraft Company facility" or "the brand names of any Dexter Corporation products that [Wright] might have come into contact with" at such a facility.
The motion also relied on plaintiffs answers to interrogatories propounded by Dexter and on excerpts from depositions of the plaintiff Carolyn Wright and the heirs of the deceased, Anthony Wright and Timothy Wright. In these discovery documents, the plaintiffs were generally unable to make any factual assertion in response to questions about product identification. The only responsive statement consisted of an interrogatory answer of Carolyn Wright to the effect that "HYSOL aerospace adhesives and EPON casting compound were used throughout the machine shop at Hughes in Tucson."
In opposition to the motion, plaintiffs offered two additional declarations of Donald Porter as evidence identifying the presence of Dexter products in the machine shop. These declarations were supported by a quantity of evidence offered to clarify and provide the context for Porters statements. In addition, plaintiffs offered evidence seeking to establish a triable issue of fact as to whether Wrights exposure to asbestos-containing products manufactured by Dexter was the cause of his death from mesothelioma.
In his second declaration, Porter stated that he worked at the Tucson facility of Hughes Aircraft Company during the period that Wright was employed there. He held "various supervisory positions, including Production Supervisor, Quality Assurance Supervisor, Test Supervisor and Receiving Supervisor." Later in his career, he was "the Manager of the Engineering Group planning for the expansion of Hughes Aircraft to Eufaula, Alabama." With respect to product identification, Porter stated: "Materials routinely used at Hughes Aircraft in the machine shop included, HYSOL brand aerospace adhesives and EPON brand aerospace casting epoxies." In a third declaration, Porter was more specific. He stated, "I believe that the HYSOL brand adhesives used in the Hughes machine shop were the 900 series aerospace adhesives."
Other evidence submitted in opposition to the motion for summary judgment reveals that one of the divisions of Dexter was known as Dexter-Hysol. Though the record contains little information about this corporate division, it does disclose that Dexter purchased the Hysol brand in 1967 and that it marketed "more than three hundred different products that used the Hysol brand name." The recitals in a 1991 agreement indicate that at that date, if not earlier, the principal place of business of Dexter Hysol was in Pittsburg, California.
Dexter had purchased the Pittsburg facility from Shell Oil Company in 1969. Under Shell Oil ownership, the products manufactured at the facility were sold under the trademark Epon. Dexter did not change the product formulation or manufacturing processes but sold the same products under the brand name "EA." The series numbers formerly associated with Epon products were continued for EA products. The manufacturing activities at the Pittsburg plant included production of an aerospace adhesive product line. William Williams, a Dexter Hysol executive, testified that aerospace adhesive paste products were sold under 900 series numbers.
The Dexter-Hysol facility in Pittsburg employed E. V. Roberts & Associates as its only West Coast distributor for aerospace adhesives and entered into formal written distributorship agreements in 1975 and 1991. Although both agreements were produced in discovery, the record of summary judgment includes only the latter. It records that "Dexter Hysol Aerospace, Inc.," gave E. V. Roberts distribution rights to "Hysol Aerospace Adhesives" at the prices set forth in an appendix. Under the heading "product designation," the appendix lists a series of liquids and pastes under "EA" 900 series numbers and 9000 series numbers.
According to Williams, the Dexter Hysol executive, asbestos was used in many aerospace adhesives as a "thixotropic" material that served to limit the flow of the resin on a vertical surface during application of the adhesive. In deposition, Williams could identify some adhesive products by series number as either containing or not containing asbestos but was uncertain about others. A letter of Williams on the letterhead of "Hysol Division — The Dexter Corporation" dated January 24, 1977, set forth a list of the companys products that contained asbestos. Most of these products were in the 900 or 9000 series and are identified elsewhere as adhesives. Plaintiffs industrial hygienist, Kenneth Cohen, averred that a Dexter-Hysol brochure published in 1985 listed "71 percent of the paste and liquid HYSOL aerospace adhesives" as containing asbestos. The summary judgment record does not include the brochure on which the declaration is based. Certain references in interrogatory answers appear to indicate that the asbestos used in the aerospace adhesives was chrysotile.
At the machine shop in the Tucson plant of Hughes Aircraft, aerospace adhesives were routinely used to bond structural components of the airframes of missiles and rockets. The processes performed in the machine shop included grinding, milling, drilling, punching and lathe turning. The Williams letter dated January 24, 1977, attempted to assess the risk of asbestos contamination from aerospace adhesives and concluded: "Hysol adhesives containing asbestos pose no asbestos hazard unless they are dry sanded after cure. To assess the general level of the hazard associated with sanding, we have measured the concentration of air-borne asbestos particles during the dry sanding of several cured adhesives. Under the conditions of our tests, an adhesive containing 3% by weight of asbestos produced an air-bornedust containing 0.7 asbestos fibers per cubic centimeter of air. [P] Although this is below the current maximum allowable concentration of 2 fibers per cubic centimeter, there is no assurance that other grinding might not produce excessive levels of air-borne asbestos."
The plaintiffs asbestos consultant, Charles Ay, stated that he was "familiar with the operation and function of machine shops such as the production machine shop described by Mr. [Donald] Porter as existing at the Hughes Aircraft Company facility in Tucson, Arizona." The machining processes release "dust and fibers" that "become airborne and drift throughout the facility." Based on the Porter declaration, Ay offered the opinion that it was "more likely than not" that "asbestos-containing material used in the machine shop resulted in the release of asbestos dust and fibers when these materials were machined" and that such materials "would be released into the air at levels well above the ambient asbestos dust background level." Persons entering the plant "would more likely than not be exposed to and breathe this asbestos dust and fibers." The plaintiffs industrial hygienist, Kenneth Cohen, gave a closely parallel declaration.
The supervising engineer, Donald Porter, stated that "from time to time" Wright "would walk through the machine shop on the way to the office areas." Another supervisory engineer at the facility, Clyde McPherson, was somewhat more affirmative. He stated: "I recall Jack Wrights office was located in the same building as the machine shop . . . and it was routine that Jack would travel through the machine shop enroute to other offices throughout that building. I recall Jack would be in the machine shop on a weekly, if not daily, basis." The record contains no evidence that there were sources of air-borne asbestos fibers in the machine shop other than aerospace adhesives or that Wright was exposed to asbestos in other times or spheres of his life.
DISCUSSION
A. Proof of Causation
In asbestos litigation, as in products liability actions generally, the plaintiff has the burden of proving that exposure to the defendants product caused the biological processes leading to his disease. (Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1416; McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1103.) In Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052-1053, 819 P.2d 872, California definitely adopted the substantial factor test for cause-in-fact determinations. "Under that standard, a cause in fact is something that is a substantial factor in bringing about the injury." (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969, 941 P.2d 1203.)
As these principles apply to products liability actions arising from exposure to asbestos, "the plaintiff must first establish some threshold exposure to the defendants defective asbestos-containing products,[] and must further establish in reasonable medical probability that a particular exposure or series of exposures is a legal cause of his injury, i.e., a substantial factor in bringing about the injury. In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendants product were the ones, or among the ones, that actually began the process of malignant cellular growth. Instead the plaintiff may meet the burden of proving that exposure to defendants product was a substantial factor causing the illness by showing that in reasonable medical probability it was a substantial factor contributing to the plaintiffs or decedents risk of developing cancer." (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th 953, 982-983.)
B. Summary Judgment Procedure
In this appeal, our review of the issue of causation arises in the procedural context of a defendants motion for summary judgment. In general, a motion for summary judgment is properly granted "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).) To succeed, a defendant must show "that under no hypothesis is there a material issue of fact that requires the process of a trial." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal. Rptr. 122, 762 P.2d 46; Artiglio v. Corning Inc. (1998) 18 Cal.4th 604, 612, 957 P.2d 1313.) "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, fn. omitted.)
The amendments to Code of Civil Procedure section 437c in 1992 and 1993 adopted the federal mechanism of burden shifting, which lies at the heart of the present appeal. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767-768.) With respect to a defendants motion for summary judgment, subdivision (p)(2) [formerly (o)(2)] now provides in pertinent part: "A defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established. . . . Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action . . . ."
"In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action—for example, that the plaintiff cannot prove element X.[] Although he remains free to do so, the defendant need not himself conclusively negate any such element—for example, himself prove not X.[] . . . The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence . . . ." (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 853-854, fns. omitted.)
A defendant may rely on "factually devoid discovery responses" (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590) or "admissions by the plaintiff following extensive discovery," (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 855) to prove that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In a products liability case based on exposure to asbestos, "it is enough to show through factually vague discovery responses that [plaintiff] lacked any significant probative evidence on the critical element of causation." (Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1288; Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal.App.4th 962, 975.)
In Hunter, the plaintiff, a bricklayer, sued a contractor, PMC, who was alleged to have worked with asbestos in the same jobsites where plaintiff worked, thereby exposing him to asbestos. Moving for summary judgment, "PMC principally relied on [the plaintiffs] deposition testimony that he was not familiar with PMC and that he could not recall ever working in the same area with PMC employees." (Hunter v. Pacific Mechanical Corp., supra, 37 Cal.App.4th 1282, 1285.) In opposing the motion, the plaintiff was able to show no more than a possible intersection of work areas in certain time frames. On appeal, the court upheld a summary judgment for PMC on the ground that plaintiff failed to produce sufficiently probative evidence to give rise to a triable issue of fact on the issue of causation. (See also Dumin v. Owens-Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655-656.)
In an appeal from an order granting a defendants motion for summary judgment, "we must independently examine the record to determine whether triable issues of material fact exist." (Saelzler v. Advanced Group 400, supra, 25 Cal.4th 763, 767.) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party [citation], liberally construing [his] evidentiary submission while strictly scrutinizing defendants own showing, and resolving any evidentiary doubts or ambiguities in plaintiffs favor." (Id. at p. 768; see also Molko v. Holy Spirit Assn., supra, 46 Cal.3d 1092, 1107; Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448, 457; Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 148.)
C. Application to the Facts
Based on the record before us, we consider that defendants motion for summary judgment succeeded in shifting the burden of proof to plaintiffs on the critical element of causation. Since plaintiffs were limited to three designated witnesses in proving product identification, the declarations of these three witnesses disclaiming knowledge of Dexter products was highly probative in showing both that plaintiffs did not possess evidence of causation and that they had no reasonable possibility of obtaining this evidence. The factually devoid discovery responses of the plaintiffs and Wrights heirs bolstered the case for summary judgment. Though they did not need to possess personal knowledge of the defendants product (see Bockrath v. Aldrich Chemical Co. (1999) 21 Cal.4th 71, 83-84, 980 P.2d 398), the plaintiffs demonstrated lack of knowledge of the product served to exclude the possibility that their testimony would fill the gaps in the testimony of the three product-identification witnesses. The one answer given in response to interrogatories propounded to Carolyn Wright fell short of showing that plaintiffs possessed evidence presenting a triable issue of fact on causation because it failed to identify a source of information or to establish the significance of the Hysol brand.
In opposition to the motion, however, plaintiffs succeeded in establishing a triable issue on the critical matter of product identification through the two additional declarations of Donald Porter. As a supervising engineer, Porter was in a position to identify aerospace adhesives used in the machine shop with the Hysol brand and the 900 series. Other evidence established a link between Dexter and adhesives sold under these designations. While the fragmentary record on summary judgment makes it difficult to evaluate this product-identification evidence, we are obliged to liberally construe the plaintiffs submissions in opposition to the motion and to resolve doubts and uncertainties in their favor. Under this standard, we find that the evidence suffices to establish a triable issue of fact.
Dexter objects that, even if its products were used in the shop, plaintiffs have offered no evidence that the shop used those products that contained asbestos. But the plaintiffs have presented evidence that most of the Dexter-Hysol aerospace adhesives contained asbestos — 71 percent by one estimate — and that the asbestos content was useful in the presumably common task of applying adhesives to a vertical surface. On these bare facts, we think the finder of fact could reasonably infer that the machine shop probably used asbestos-containing aerospace adhesives.
The underlying issue of causation also presents a very close issue. Assuming that asbestos-containing adhesives manufactured by the defendant were used in the machine shop, it remains undisputed that Wright was no more than an occasional and itinerant visitor to the machine shop. The asbestos content of the adhesives was very small and could be released into the atmosphere in significant quantities only through certain machining operations affecting surfaces on which the adhesives had been applied.
Nevertheless, we conclude that plaintiffs produced sufficient evidence to present a triable issue of fact. The letter dated January 24, 1977, on behalf of Dexter admitted at least the possibility that the machining of surfaces on which the adhesives were applied could result in a harmful release of asbestos fibers. The plaintiffs expert witnesses, Charles Ay and Kenneth Cohen, were prepared to testify that the machining of such surfaces could result in the release of asbestos fibers in the air "at levels well above the ambient asbestos dust background level." Whatever may be the strength or vulnerability of this evidence, we consider that it presented a triable issue of fact on the element of causation in plaintiffs cause of action for product liability.
The judgment is reversed. Costs on appeal are awarded to appellants.
We concur, Stein, Acting P. J., Margulies, J. --------------- Notes: A daughter, Cindy Hagler, joins the spouse, Carolyn Wright, as a plaintiff. Two sons, Timothy Wright and Anthony Wright, were named as defendants pursuant to Code of Civil Procedure section 382 because their consent could not be obtained to join as plaintiffs.