California Court Relies on Absence of Evidence in Plaintiff’s Discovery Responses to Affirm Summary Judgment for Defendant Fluor

California Court Relies on Absence of Evidence in Plaintiff’s Discovery Responses to Affirm Summary Judgment for Defendant FluorCalifornia Court of Appeal, December 15, 2015

A husband and wife sued numerous defendants after the husband was diagnosed with asbestosis in 2011. Defendant Fluor moved for summary judgment, which the court granted, on the basis that the plaintiffs failed to establish a triable issue of fact that the plaintiff was exposed to asbestos from Fluor products. The appellate court affirmed.

The plaintiffs alleged the husband was exposed to a variety of asbestos-containing products during his work with Southern California Gas Company from the 1950s-90s. In response to discovery from Fluor, the plaintiff stated he helped to demolish a natural gas cooling tower over 14-21 days which had “Fluor” on the bottom. The plaintiff also produced a multi-page list of categories of documents, such as all depositions from prior asbestos litigation given by Southern California Gas Company and Fluor, and the documents in Fluor’s own files. The plaintiff gave conflicting testimony regarding what the tower was made of; he stated he thought it was wood, but then said he didn’t know what it was.

In response to the motion, the plaintiffs initially asked for a continuance to conduct further discovery. After this was granted, the plaintiffs produced a deposition of their expert, who stated that it was not uncommon to find asbestos-containing transite in cooling towers. The plaintiffs also produced the deposition of Fluor’s corporate representative, who stated that Fluor made cooling towers from 1947 to sometime in the 1960s. The trial court granted the motion, relying on the plaintiff’s testimony that the tower was made of wood, and finding that the plaintiff’s expert testimony lacked foundation.

The court affirmed the trial court’s ruling because there was insufficient evidence to establish a probability that the tower contained asbestos. Defendants moving for summary judgment must make an affirmative showing that the plaintiff lacks sufficient evidence to establish causation. The court noted: “Circumstantial evidence supporting a defendant’s motion ‘can consist of ‘factually devoid’ discovery responses from which an absence of evidence can be inferred…a defendant may point to the absence of evidence in plaintiff’s discovery responses to infer that the plaintiff does not have, and cannot obtain, sufficient evidence to survive summary judgment.” Here, while the plaintiff provided some details in his deposition linking the tower to Fluor, further discovery responses provided no specific facts suggesting that the tower contained asbestos, and the evidence he now relied on — Fluor’s corporate representative and his expert — was not identified in any written discovery response. Further, his list of documents contained no further factual detail.

The court also found that the plaintiffs did not produce sufficient evidence to raise a triable issue as to causation. The evidence provided — testimony by Fluor’s representative that Flour made towers with transite during this period, plaintiff’s description of the tower, and their expert’s opinion that the tower had transite — did not provide sufficient circumstantial support to allow a reasonable inference that the tower was made with asbestos-transite baffles. The plaintiff’s testimony describing the tower was contradictory, the Fluor representative also testified that Flour made different types of towers, and the plaintiff’s expert’s testimony lacked foundation.

Read the full decision here.