Exclusion of Belated Theory of Exposure Upheld on Appeal Court of Appeals of California, Second Appellate District, Division Four, August 18, 2016

The plaintiff sued multiple defendants, including “asbestos” and “premises” defendants, asserting claims of negligence, strict liability and premises liability based on his alleged asbestos exposure in the City of Coalinga (where he resided from 1959 to 1972) and during his 30-year career as a pipe inspector.

Defendant PAC Operating Limited Partnership was sued as a premises defendant. Its predecessor, Southern Pacific Land Company (SPLC), owned 557 acres of land in the Diablo Mountain Range, located 17 miles outside of Coalinga. In 1961, SPLC leased the land to a company primarily owned by Johns-Manville, which mined and milled asbestos ore at the site until 1972. In 1980, the EPA declared the land a “superfund” site. In 1987, the EPA also declared the Coalinga Operating Unit (Coalinga OU) (a 107 acre plot inside the City where asbestos from the mines was bagged and stored) a “superfund” site. The plaintiff’s complaint did not specify the real property that formed the bases for his allegations against PAC.

During discovery, the plaintiff testified that he did not recall visiting the asbestos mills or mines in the Diablo Mountain Range when he lived in Coalinga, or hiking in that area. PAC moved for summary judgment. In his opposition, the plaintiff maintained for the first time that part of the Coalinga OU was owned by SPLC and that it was contaminated with asbestos from operations conducted on PAC’s property in the mountain superfund site. In its reply, PAC argued that the Coalinga OU was actually owned by the Union Pacific Railroad, a fact which the plaintiff knew because he sued that defendant over that property in the instant lawsuit.

Shortly after the motion for summary judgment was denied, PAC moved in limine to exclude any evidence at trial that it owned the Coalinga OU, arguing that any such reference would be false. PAC further argued that, prior to the filing its motion for summary judgment, the plaintiff had not attempted to link his asbestos exposure to the Coalinga OU or any property other than the mountain superfund site.

The trial court granted the motion in limine, finding that PAC would be prejudiced at trial by the late disclosure. It concluded that PAC made legitimate efforts to prepare its defense of the case and noted the plaintiff’s discovery responses which consistently failed to reference the Coalinga OU. Accordingly, the plaintiff proceeded at trial against PAC solely on the basis that he had been exposed to asbestos at the mountain superfund site. The jury concluded that the plaintiff had been exposed to asbestos from the mountain property, but that such exposure was not a substantial contributing cause of his mesothelioma.

On appeal,  the plaintiff contended that the trial court abused its discretion in granting PAC’s motion in limine. The appellate court determined that the trial court properly excluded the “belatedly revealed theory related to Coalinga OU” as a proper exercise of its inherent authority to control the proceedings and to ensure a fair trial.

Read the full decision here.

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