In Schiffer v. CBS Corporation (filed 9/9/15; modified 9/30/15), the California Court of Appeal, First Appellate District, affirmed summary judgment in favor of the defendant asbestos insulation manufacturer finding plaintiffs failed to present sufficient evidence of bystander exposure.

Plaintiff James Schiffer (“Schiffer”) alleged that while working at the Ginna Gas & Electric power plant in the summer of 1969, he was exposed to asbestos-containing materials during installation of equipment and insulation manufactured by CBS Corporation’s predecessor-in-interest, Westinghouse.

After developing mesothelioma, Schiffer and his wife sued numerous entities, including CBS, which successfully moved for summary judgment on the grounds that Schiffer failed to submit evidence that he was exposed to asbestos-containing materials.

On review, the Court of Appeal reiterated the plaintiff bears the burden of demonstrating that exposure to asbestos was, in medical probability, a substantial factor in causing/contributing to the risk of cancer. To determine whether a medical probability exists, there are several factors to consider: frequency of exposure, regularity of exposure, and proximity of the asbestos product.

Analyzing the evidence presented, the Court of Appeal determined Schiffer’s testimony, that he observed installation of insulation and that he was frequently in the building where construction occurred, did not establish legally significant exposure to asbestos. Further, Schiffer failed to present evidence that the insulation he observed being installed was actually supplied by Westinghouse and that he was actually present during installation.

The Court of Appeal also found the testimony of Schiffer’s experts did not support a finding of causation as none of the experts reviewed Schiffer’s deposition testimony. Because the experts had considered an incomplete universe of information, they did not have an adequate basis to conclude that Schiffer’s exposure to Westinghouse-related asbestos was a substantial cause of the mesothelioma.

This case is important because it prevents plaintiffs in asbestos exposure cases from simply relying upon their physical presence in an area where asbestos-containing products/materials may also happen to be to support liability; plaintiffs must present sufficient evidence of frequency, regularity and proximity to actual asbestos-containing products. Additionally, this case serves as an example of how to attack the expert testimony of plaintiffs who fail to provide his or her expert with the full universe of information available.