Expert Opinion on Asbestos Content of Insulation — Based in Part on Non-Party Witness Declaration — Sufficient to Create Question of Fact to Overcome Summary Judgment Court of Appeal of California, First Appellate District, Division One, February 18, 2016
In this case, it was claimed that the decedent, Michael O’Leary, was exposed to asbestos while working as a rigger at the Tosco Refinery in the 1970s to late 1980s near employees from the defendant, Dillingham Construction N.A., Inc., who were sweeping up insulation off the floor in his vicinity. The trial court precluded the opinion that the insulation contained asbestos as being speculative from the plaintiff’s expert, Charles Ay, and granted summary judgment to Dillingham.
On appeal, the court found the expert’s opinion to not be speculative and reversed the lower court’s ruling. As the court held: “The expert opinion of Charles Ay regarding the insulation’s asbestos content is not speculative or lacking in foundation as Dillingham claims. Ay had an eyewitness’s description of the insulation. Ay also knew the insulation was removed from steam pipes and machinery over a span of years beginning in the early 1970’s. From these facts, and based on his knowledge of insulation materials used in various industrial contexts, including in refineries, Ay concluded the insulation contained asbestos.”