Another Take On “Take-Home” Exposure In California: Foglia V. Moore Dry Dock Co.

by Husch Blackwell LLP

A California appellate court recently upheld the trial court’s granting of summary judgment in a secondary exposure asbestos case where Plaintiffs could offer no admissible evidence that decedent’s father worked around asbestos-containing materials. See Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018).  The trial court excluded plaintiff’s testimony regarding his father’s work because he acknowledged he had no personal knowledge and also sustained defendant’s objections to an affidavit of decedent’s aunt who likewise had no personal knowledge of decedent’s father’s work.

Plaintiffs Sandra Foglia, Michael Foglia, and Annette Rackley, individually and on behalf of the estate of Ronald Foglia, appealed the summary judgment entered against them on their wrongful death claim against defendant Moore Dry Dock (“MDD”). Plaintiffs alleged that decedent developed mesothelioma based on a theory of take home exposure from decedent’s father (“Father”) who allegedly worked as an electrician at a shipyard operated by MDD.  Defendants propounded comprehensive interrogatories, including specially prepared interrogatories, requesting that plaintiffs “state all facts” supporting their contention that decedent and Father’s alleged asbestos exposure was caused by MDD.  At decedent’s deposition, he was asked about his father’s alleged employment at MDD and responded that his father and his aunt had told him that is where his father worked and he believed them.

MDD’s summary judgment theories were both that it owed no duty of care to decedent for secondary exposure and that plaintiffs did not have and could not obtain evidence of asbestos exposure to show decedent was exposed to asbestos from the clothing and person of Father because of Father’s employment at MDD from 1942 to 1945. The trial court rejected MDD’s claim that it owed no duty to decedent as a matter of law.  Rather, the trial court found an employer could owe a duty of care to family members of employees to protect them from exposure to harmful substances encountered because of employment.  The California Supreme Court in Kesner v. Superior Court, 1 Cal.5th 1132 (2016) also later reached this conclusion.

Regarding its second argument, while MDD did not dispute that Father had worked for MDD in the 1940s, MDD claimed that decedent, who would have been five years old when his father allegedly worked at MDD, only had a vague recollection that his father worked for MDD, but had no knowledge (independent of what his father told him) that his father had ever worked with or around thermal insulation. Thus, plaintiffs based their allegations on what could have happened.  Furthermore, decedent was never present at MDD. Consequently, the trial court found that the decedent’s testimony did not constitute admissible evidence of Father’s exposure to asbestos.

The trial court ultimately agreed with MDD’s second argument in this case after examining the entirety of the admissible evidence provided by the parties in support of and in opposition to the summary judgment motion. The trial court held MDD had made a sufficient showing based on plaintiff’s factually devoid discovery responses to shift the burden of proof to plaintiffs regarding Father’s exposure.

Plaintiffs appealed arguing that the trial court erred in finding MDD made a sufficient showing, based on plaintiffs’ discovery responses, to shift the burden of proof to them on the issue of Father’s exposure. Plaintiffs argued that MDD did not meet its initial burden on summary judgment where it failed to conduct comprehensive discovery and failed to disclose all the evidence it had already discovered and that plaintiffs’ discovery responses were enough to raise a triable issue of fact on exposure.  Plaintiffs also believed that even with a burden shift, their evidence raised triable issues about Father’s exposure to asbestos from his employment at MDD.  Plaintiffs’ final argument was their belief that the court erroneously excluded lay and expert testimony that raised a triable issue as to Father’s exposure to asbestos from his employment at MDD.

The appellate court also found that plaintiffs did not produce admissible evidence for a triable issue of fact. Decedent’s testimony about what his father and aunt told him was hearsay.  Even if true, the testimony only established that he worked at MDD, but not that Father was exposed to asbestos at MDD.  The appellate court was not persuaded by plaintiffs’ argument that MDD should have deposed decedent’s aunt.  MDD’s failure to depose decedent’s aunt could have been due to a lack of contact information provided and that MDD was not required to depose the aunt.  The appellate court further found it was already satisfied that neither decedent nor his aunt had any independent knowledge that Father worked as a lead electrician on ships or in the shipyard.  In much the same way, the trial court ruled for MDD regarding plaintiffs’ experts, ruling that the experts did not have a sufficient foundation for their opinions due to a lack of asbestos exposure evidence at MDD.  The appellate court agreed.

Furthermore, plaintiff’s counsel admitted that plaintiff did not know what ship or asbestos-containing products decedent’s father was exposed to. Plaintiff tried to assert that Father inevitably was exposed to asbestos simply by working at the shipyard but the trial court rejected that argument.  The trial court held that if that argument were true, the court would have to accept that exposure theory for all 37,000 employees.  Plaintiffs also conceded that there was no evidence of the amount of asbestos work done at MDD or what the levels of asbestos would have been at the shipyard, on any particular ship, or that decedent’s father was near any work involving asbestos.

The appellate court upheld the trial court noting, “there is no admissible evidence that decedent’s father worked as an electrician, that he worked at the shipyard or on ships at MDD, that he worked with or in proximity to asbestos-containing materials, or that he worked with or in proximity to asbestos-containing materials [that] would have released asbestos fibers into the air to which he was exposed.” Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683, at *15 (Cal. Ct. App. Mar. 8, 2018).  The court further found that even if the aunt’s declaration or the deposition testimony of the decedent were admitted, it would not be sufficient evidence to support a reasonable inference that decedent had exposure resulting from MDD activities.

While Foglia is an unpublished, and uncitable opinion under California rules of court, its legal theory can apply to other cases.  Defendants should carefully analyze plaintiff’s evidence for admissibility and be aware of the burden shifting that can take place during discovery.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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