Summary Judgment for Brake Manufacturer Reversed as Circumstantial Evidence of Exposure Sufficient to Show Triable Issue of FactCourt of Appeal of California, Second Appellate District, December 7, 2016
The plaintiffs, wife and sons of Henry Linsowe, filed a complaint in 2011 alleging causes of action for negligence, strict liability, and loss of consortium. In their complaint, the plaintiffs alleged that Linsowe worked as a brake mechanic at Downey Ford from 1969 to 1986 and that he was exposed to asbestos “during various activities, including handling, beveling, removing, cutting, scoring, grinding, shaping, drilling, and installing of asbestos-containing brake pads and shoes, and the use of compressed air to clean and remove asbestos dust from brake drums and assemblies.” Defendant Honeywell International, Inc., successor-in-interest to The Bendix Corporation was added to the plaintiffs’ complaint as a Doe defendant in March 2014.
Honeywell moved for summary judgment contending that the plaintiff’s evidence was insufficient to establish that Linsowe had been exposed to Bendix products. Honeywell argued, “Here, there is no admissible or reliable evidence of decedent’s exposure to an asbestos-containing product manufactured by Honeywell. . . . None of the persons identified by plaintiffs as a witness (as well as all persons deposed to date) could provide competent testimony that decedent used a Bendix brake.” As a result, Honeywell argued, the plaintiffs “cannot prove causation—a critical element for all their claims.” Honeywell pointed to the plaintiff’s inability to produce documents supporting their allegations and depositions of co-workers and a Ford person most knowledgeable which suggested a lack of direct evidence that Mr. Linsowe worked on Bendix products on a specific vehicle at a specific time. Critically, Honeywell emphasized that Ford also used brake products supplied by other manufacturers which were repackaged before supply to dealers such as Linsowe’s employer.
The plaintiffs opposed Honeywell’s motion arguing that Honeywell failed to meet its burden under Code of Civil Procedure section 437c (section 437c) to demonstrate that the plaintiffs’ causes of action had no merit. The plaintiffs argued that Honeywell’s insistence on direct evidence was misguided: “The fact that Mr. Linsowe’s heirs cannot personally identify a specific day, on which a specific Ford vehicle, with a specific VIN number, was worked on by Mr. Linsowe that contained Bendix asbestos brake products does not form the basis for a summary adjudication.” The plaintiffs also argued that the evidence they submitted in opposition to the motion demonstrated a triable issue of fact. According to the plaintiffs, brake mechanics such as Linsowe are exposed to asbestos when working on existing brakes installed in vehicles, and also in preparing and installing replacement brakes. The plaintiffs submitted deposition testimony from witnesses suggesting various makes and models of vehicles that Mr. Linsowe worked on and that Bendix brakes were used on the various models.
The trial court held a hearing and granted Honeywell’s motion for summary judgment holding that Honeywell shifted the burden under section 437c by demonstrating that the plaintiff’s evidence does not show specific exposure to Bendix brakes. The trial court also rejected supplemental filings made by the plaintiff after the hearing.
The plaintiff appealed from that ruling arguing that Honeywell failed to shift the burden on summary judgment, and therefore its motion should have been denied. The plaintiffs contended Honeywell failed to carry its burden because it focused only on the lack of direct evidence of exposure, ignoring inferences that can be drawn from circumstantial evidence. The plaintiffs argued, “Honeywell asked the trial court to entertain only direct evidence, namely a witness or authenticated photograph that shows Mr. Linsowe working on a specific day on a specific vehicle replacing a specific brake shoe. Honeywell ignores the equivalent value of circumstantial evidence and Plaintiffs’ right to all reasonable inferences that can be drawn from the available evidence.” The court disagreed, finding that Honeywell had met their initial burden to show that the plaintiffs were unable to establish that Linsowe had been exposed to Bendix brakes because a defendant moving for summary judgment “may show through factually devoid discovery responses that the plaintiff does not possess and cannot reasonably obtain needed evidence.”
However, the court found that the plaintiffs still met their burden to show a triable issue of material fact as to exposure. Although the plaintiffs lacked direct evidence, they argued that with their circumstantial evidence a trier of fact reasonably could infer that at least some of the brake work Linsowe did at Downey Ford in the 1970s involved brakes manufactured by Bendix, thereby exposing Linsowe to asbestos from Bendix products. On review, the vourt concluded that the evidence was sufficient to show that a trier of fact reasonably could conclude that Linsowe handled Bendix parts at Downey Ford. As such, the judgment in favor of Honeywell was reversed.