The plaintiff, Jerry Charlifue, sued Goodman Lumber Company after he was diagnosed with mesothelioma. He worked as a taper and painter for U.S. Taping Company between 1972 and 1978. His duties involved applying joint compound and smoothing out walls and ceilings where drywall had been hung. The plaintiff worked with dry joint compound for the first three to four years of the job, which produced respirable dust.
Goodman moved for summary judgment on the basis that the plaintiff could not prove that he was exposed to an asbestos-containing product it supplied. In response, the plaintiff asserted that he purchased various brands of joint compound from Goodman, including Kaiser Gypsum and US Gypsum. To establish that these products contained asbestos, the plaintiff proffered the former deposition testimony of the corporate representatives of Kaiser Gypsum and US Gypsum, which indicated that those companies did not phase out asbestos-containing joint compounds until approximately 1976. He also submitted a declaration by William Ewing, an industrial hygienist, stating that it was “more likely than not any joint compound materials that were supplied by Goodman…to U.S. Taping before 1976 were asbestos-containing.” The plaintiff further sought for the court to take judicial notice of a patent for an asbestos-free joint compound issued to US Gypsum in 1975 which, according to the plaintiff, indicated that it “was the first ever application for an asbestos-free joint compound to be produced in the United States.”
The court granted Goodman’s motion for summary judgment, finding that the plaintiff failed to generate a triable issue as to whether he was exposed to asbestos-containing products sold by Goodman. In doing so, it sustained defense objections to the use of the prior Kaiser Gypsum and US Gypsum corporate designee testimony, the Ewing declaration and the US Gypsum patent.
The appellate court reversed the decision. It found that, while the prior deposition testimony and joint compound patent evidence constituted inadmissible hearsay, the trial court’s ruling on the Ewing declaration was an abuse of discretion. Specifically, Ewing was permitted to rely upon hearsay (the former deposition testimony and the patent application) because it was reliable and of the type reasonably relied upon by experts in the field. Accordingly, the plaintiff had raised a triable issue as to whether he was exposed to asbestos from products sold by Goodman. Viewing the evidence in the light most favorable to the plaintiff, the appellate court found that it was sufficient to show that Goodman may have supplied the joint compound with which the plaintiff worked, and the Ewing declaration suggested that any joint compound supplied by Goodman during the relevant time period must have contained asbestos.