Boiler Refractory Contractor’s Summary Judgment Reversed due to Exposure Question of Fact

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Court of Appeal of California, First Appellate District, Division Five, August 4, 2021

In this matter, the decedent was diagnosed with mesothelioma in March 2014. The decedent and his wife sued numerous defendants, including Thomas Dee Engineering Company (Thomas Dee) based on the decedent’s exposure to asbestos while serving in the U.S. Navy. Specifically, the plaintiffs alleged that Thomas Dee performed repairs on USS San Jose boilers during fall 1973. The decedent testified that he worked in the boiler room and saw others work in the boiler room, however he did not see anyone perform work on the boilers. Following his death in October 2014, the decedent’s wife and children amended the complaint to assert wrongful death and survival claims.

Thomas Dee moved for summary judgment on the issue of exposure. The plaintiffs presented William Ewing, a certified industrial hygienist, as their expert witness regarding asbestos exposure. In his deposition, Mr. Ewing testified that there would not be any exposure issue if the decedent had not been present when boiler work was performed. However, in a declaration submitted by the plaintiffs in opposition to Thomas Dee’s summary judgment motion, Mr. Ewing stated that the decedent did not need to be present at the exact time the workers performed their work in order to be exposed. Rather, he raised the “re-entrainment theory” of exposure and explained that, “[t]here is near universal agreement that asbestos fibers persist in the environment almost indefinitely and thus can represent a continuous potential source of exposure when present in buildings or other enclosed spaces.” Following a hearing, the trial court granted Thomas Dee’s motion for summary judgment. The trial court rejected the plaintiffs’ use of Mr. Ewing’s declaration to create a factual issue because the re-entrainment theory was not disclosed in his earlier deposition and because it conflicted with his deposition testimony. The plaintiffs appealed.

The Court of Appeal found that Mr. Ewing’s declaration demonstrated a triable issue, specifically exposure under the re-entrainment theory. Although Mr. Ewing did not mention the theory during his deposition, the court determined that the declaration did not “flatly contradict[ ] deposition testimony and provided no basis to conclude that the opinion expressed in the declaration was actually the valid one.” The court noted that it was for the factfinder to decide how much weight to give Mr. Ewing’s re-entrainment theory testimony, taking into consideration his deposition testimony. Accordingly, because the trial court refused to give the declaration any weight, the court reversed the order granting summary judgment.

Read the full decision here.