Court: Court of Appeals of California, First Appellate District, Division One

Decedent Daniel Ochoa worked as a HVAC technician and pipefitter beginning in the 1970s.  His work involved extensive maintenance on cooling towers throughout southern California.  He was diagnosed with mesothelioma and commenced this action prior to his passing.  His widow Joe Ann Ochoa and Arianna Alyssa Huerta were substituted as plaintiffs.  Plaintiffs appealed from a summary judgment entered in favor of defendants Baltimore Aircoil Company (BAC) and SPX Cooling Technologies Inc. (SPX).

At his deposition, Ochoa testified he began working on cooling towers as an apprentice.  He recalled working on BAC and SPX towers but for the most part was unable to identify which brand he worked on at a particular time.  Crucially, “Ochoa did not ‘know whether any cooling tower that [he] worked on at any time in [his] career contained asbestos.”  Ochoa v. SPX Cooling Techs., 2023 Cal. App. Unpub. LEXIS 4209, at *2 [July 20, 2023, No. A164054]).  Ochoa stated:

“Every time we had to work on a cooling tower you would have dust…[you would] be breathing the produce from these towers that…was, I guess, maybe fungus.  It would be whatever is left on the towers, because of the chemicals they put in the water to keep the water as clean as possible.”

Ochoa, 2023 Cal. App. Unpub. LEXIS 4209, at *3.  Defendant BAC moved for summary judgment arguing it never manufactured cooling towers with louvers containing asbestos.  It stated it used galvanized steel for its out casings and that none of its fan bearings, fan blades, float valves, or fan belts contained asbestos.  Likewise, SBX moved for summary judgment contending it manufactured entirely asbestos-free cooling towers along with those containing asbestos cement board.  Both defendants argued that plaintiffs failed to explain or provide evidence showing the work the decedent performed would have exposed him to asbestos from their respective cooling towers.

“In the context of a cause of action for asbestos-related latent injuries, the plaintiff must first establish some threshold exposure to the defendant’s defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.”  2023 Cal. App. Unpub. LEXIS 4209, at *9; Rutherford v. Owens-Illinois, Inc.,  16 Cal 4th 953 [1997]).  Defendants argued Ochoa’s speculative testimony failed to meet this threshold.

Prior to his death, the decedent testified he did not know if any cooling tower he ever worked on contained asbestos.  He remembered working on both BAC and Marley (SBX) cooling towers, but was unable to identify which brand he worked on at any particular jobsite.  Although he scraped louvers, cleaned sump pans, changed and oiled belts, lined  bearings, and ensured the shafts were straight on the towers, plaintiffs could not produce any evidence there was any asbestos in any of these parts.  Moreover, the decedent’s testimony that his work produced dust was also insufficient.  Neither he nor plaintiffs produced any evidence it was asbestos dust. 

The court relied on McGonnell v. Kaiser Gypsum Co., reasoning, “It is not enough to produce just some evidence.  The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.”  Ochoa, 2023 Cal. App. Unpub. LEXIS 4209, at *17; McGonnell v. Kaiser Gypsum Co., 98 Cal App 4th 1098 [2002]).  Evidence that the cooling towers contained certain asbestos-containing products without any greater specificity was simply inadequate.  “All that exists in this case is speculation…The evidence creates only a ‘dwindling stream of probabilities that narrow into conjecture.’”  McGonnell, 98 Cal App 4th at 1105.

The court ruled, “In sum, there must be more than some evidence that plaintiff worked on some cooling tower that might have contained an asbestos-containing part, without any evidence of asbestos exposure.  But that is all the record evidence shows here.”  Ochoa, 2023 Cal. App. Unpub. LEXIS 4209, at *23.  As such, it upheld the trial court’s summary judgment findings on behalf of defendants BAC and SPX.

Read the full decision here.