Asbestos Alert: Failure To Recognize A Defendant’s Name Insufficient To Support Summary Judgment

by Low, Ball & Lynch

Ganoe v. Metalclad Insulation Corp.

California Court of Appeal, Second Appellate District (July 21, 2014)

Metalclad was an insulation contractor.  Mark Ganoe worked in Department 132 at Goodyear Tire & Rubber from 1968 until 1979. He was diagnosed with mesothelioma, filed a personal injury action, and gave deposition testimony, but died before trial.  His heirs brought a wrongful death action. The only defendant identification witness disclosed by the heir-plaintiffs was Richard Ettress, Ganoe’s co-worker from 1968 to 1979.  Ettress testified in deposition that he had never heard of Metalclad.  He was not shown the Metalclad logo, but was asked about the name.  Plaintiffs had no documentation showing that Metalclad had ever worked at Goodyear.  During discovery, Metalclad produced a document showing that it had performed insulation work on steam piping at the Goodyear plant in 1974, without further detail.

Metalclad moved for summary judgment on the ground that plaintiffs had insufficient evidence. Plaintiffs submitted Ganoe’s deposition testimony that he worked around steam lines that went into a Banbury machine, and that those steam lines had insulation on them that “looked like dirty chalk”.  Ganoe had claimed that he was present when the steam line was repaired.  Ettress signed a declaration stating that, in 1974, a new Banbury machine was installed and tied into an older Banbury machine and an outside contractor had manipulated existing steam pipes and insulation and installed and insulated new steam pipes.  A declaration from plaintiffs’ materials expert, Charles Ay, stated that Ganoe’s description of the insulation was “almost certainly” a description of asbestos-containing insulation, and that the installation of the new Banbury machine “more likely than not” would have required the removal of asbestos-containing insulation.

Los Angeles Superior Court Judge Emilie Elias, who has been the primary pretrial judge for Los Angeles, Orange County and San Diego asbestos cases for several years, granted Metalclad’s summary judgment motion.  Judge Elias found that Metalclad had met its burden of proof, that the document produced by Metalclad was insufficient to support liability because it did not identify “specific dates when, and locations within the plant where, the work occurred,” and that Ay’s testimony was speculative because he was not a percipient witness. The Court of Appeal reversed.

The appellate court noted that Ettress had not identified the contractor who did the insulation work, and that Metalclad did not show Ettress its logo or ask him if he recognized it, but merely asked if he recognized Metalclad’s name.  The negative response to that question, by itself, was insufficient to create an inference of nonexposure, or that plaintiffs could not prove exposure by other means.  On these grounds, the trial court erred in concluding that Metalclad had met its burden of proof.

The Court of Appeal also held that, even if Metalclad had met its initial burden of proof, the document plaintiffs submitted was sufficient to create a question of fact requiring denial of Metalclad’s motion. The document showed that Metalclad performed some insulation work on steam piping at the Goodyear plant in 1974.  The only construction work requiring insulation at the plant in 1974 occurred in Department 132 (where decedent worked) when the new Banbury machine was installed, removal of old insulation was a required part of the installation, and the old insulation probably contained asbestos. The Court of Appeal found that Ay’s opinions were not speculative due to his experience as a “pipe coverer, insulator and asbestos worker” for 25 years, and his certifications and training about safety issues related to asbestos.

Comment and Evaluation

How far must defense counsel go to find out whether a witness can remember a defendant’s name?   Is defense counsel required to show the witness logos, photographs, or actual equipment in order to win a summary judgment?  How does defense counsel demonstrate that plaintiff will be unable to obtain the identification later?  Historically, one plaintiff attorney tactic has been to show plaintiffs the logos of products to encourage them to remember each product during their deposition.  This court seems to be requiring defense counsel to do the same thing in order to win summary judgment.

This case significantly lowers the level of certainty that is required before evidence may lawfully support a conclusion.  Judge Elias ruled that the Metalclad document was insufficient because it did not provide specifics regarding the dates and locations of Metalclad’s work at the plant.  The Court of Appeal ruled otherwise, holding that evidence outside the document, that “a contractor” had done such work in 1974 in a particular location in the plant, that there was no evidence of Metalclad doing any other work in the plant, and that there was no evidence that someone other than Metalclad did the work in question, was sufficient to create a question of fact.

Before the Sheiding case (69 Cal.App.4th 64), a defendant could win a motion for summary judgment when plaintiff simply failed to mention the defendant’s name during deposition.  Sheiding required the defendant to ask if the plaintiff recognized its name before a summary judgment motion could be filed.  Ganoe seems to extend this requirement to the defense presentation of a logo before a motion for summary judgment can be granted. Whether this is done by plaintiff or defense, the act of showing a logo risks creating a “memory” where none existed.

For the full decision see here.


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Low, Ball & Lynch

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