CALIFORNIA — In this federal court case, the plaintiffs commenced an action in the Eastern District of Pennsylvania alleging the plaintiff’s decedent, Robert Hilt, was exposed to asbestos from numerous products, including Foster Wheeler boilers, on Navy ships . Foster Wheeler moved for and was granted summary judgment based on the finding that the plaintiff’s expert, Dr. Charles Ay’s, opinion was speculative. Subsequently all other defendants either settled or were dismissed from the case. The plaintiff appealed the order granting Foster Wheeler summary judgment and the Ninth Circuit Court reversed. In its decision, the Ninth Circuit found that Dr. Ay’s, opinion “was sufficient to create a genuine issue of material fact as to whether Robert Hilt was exposed to asbestos fibers from insulation supplied by Foster Wheeler.” The Ninth Circuit did not address “whether there was a genuine issue of material fact that Hilt’s alleged exposure to asbestos-containing boiler insulation was a ‘substantial contributing factor in causing his injuries.’” The case was then remanded to the United States District Court, N.D. California for consideration of any remaining grounds for summary judgment in Foster Wheeler’s moving papers.
On remand, the District Court denied Foster Wheeler’s remaining arguments related to product identification/causation and bare metal defense. In its discussion the court highlighted that maritime law applies and to “establish causation under maritime law, Plaintiffs must show that (1) Hilt was exposed to asbestos-containing material manufactured or supplied by Foster Wheeler, and (2) such exposure was a substantial contributing factor in causing his injury.” Foster Wheeler argued that there was “(1) a lack of evidence that Hilt had been exposed to asbestos from a Foster Wheeler product, and (2) a lack of evidence that Foster Wheeler manufactured, sold, or supplied the actual asbestos-containing materials to which Hilt was exposed.” However, the court denied the product identification/causation portion of the motion agreeing with the Eastern District of Pennsylvania Court’s prior finding that there was evidence that Mr. Hilt was exposed to asbestos from insulation used with Foster Wheeler boilers while aboard Navy ships. The court also denied the bare metal argument stating “Plaintiffs have proffered a declaration from Charles Ay, who concluded that it was ‘more likely than not that [Hilt] was exposed to and inhaled respirable asbestos fibers in concentrations orders of magnitude above background or ambient levels from asbestos-containing refractory original to the Foster boilers.”