Summary Judgment Reversed in Drywall/Joint Compound Matter

Court of Appeal of California, Second Appellate District, Division Seven, June 24, 2020

In December 2011, the plaintiff, Jovana Collantes, and the decedent, Joel Hernandezcueva, filed a lawsuit against numerous defendants arising from the decedent’s alleged exposure to asbestos while employed as a janitor at a large complex occupied by Fluor Corporation (the Fluor Complex) from 1992 to 1995 (the December 2011 action). The plaintiff and the decedent alleged the decedent inhaled drywall debris containing asbestos. The December 2011 action went to trial in September 2013 against E.F. Brady Company, a contractor who constructed the interior walls at the Fluor Complex in 1975 and 1976. The plaintiff and the decedent argued the E.F. Brady Company installed the drywall in the Fluor complex using joint compound manufactured by Hamilton Materials. The Hamilton joint compound contained Calidria, a type of asbestos mined and supplied by Union Carbide and distributed by Elementis and its predecessor-in-interest.

At the conclusions of the plaintiff and the decedent’s case in chief, the court granted E.F. Brady Company’s motion for nonsuit on all but one of the causes of action. The jury subsequently returned a verdict in favor of E.F. Brady Company on the remaining cause of action, and the trial court entered judgment for E.F. Brady Company. Both the plaintiff and decedent appealed.

While the appeal was pending, the decedent passed away in April 2014. Thereafter, the plaintiff filed a survivor and wrongful death action against several defendants, including Union Carbide Corporation (UCC) and Elementis, Inc. In the meantime, the appellate court subsequently reversed the trial court’s decision granting E.F. Brady Company’s motion for nonsuit in the December 2011 strict liability cause of action. The December 2011 action then consolidated with the plaintiff’s wrongful death action.

Thereafter, UCC and Elementis filed motions for summary judgment arguing the plaintiff could not prove the decedent was exposed to asbestos from their products. In support of their motions, UCC and Elementis provided testimony from an E.F. Brady Company representative who stated that E.F. Brady Company was responsible for the construction of the interior walls in the shell of the buildings at the Fluor Complex and that E.F. Brady did not perform any remodels or renovations to the Fluor Complex after the initial construction was complete in the 1970s. The defendants also provided testimony of a Fluor Complex employee who indicated that alternations and construction to the interior spaces of the Fluor Complex was performed from 1979 to 1986. Work permits obtained by Fluor confirmed renovation work was performed.

UCC and Elementis argued that, in light of these projects, any inference the drywall debris the decedent allegedly inhaled in the 1990s came from the same asbestos-containing drywall manufactured and supplied by UCC and Elementis in the 1970s was speculative. The trial court granted the defendants’ motions. The plaintiff appealed.

“Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.'” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607; see Valdez v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600). In finding that a triable issue of material fact existed here, the court explained, “[T]o establish exposure in an asbestos case a plaintiff has no obligation to prove a specific exposure . . . on a specific date or time. Rather, it is sufficient to establish ‘that defendant’s product was definitely at his work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it’ during his work there.” Turley v. Familian Corp. (2017) 18 Cal.App.5th 969.

The appellate court found there was sufficient evidence of exposure here since UCC and Elementis did not dispute that E.F. Brady used asbestos-containing joint compound supplied by UCC and Elementis when it initially constructed the walls at the Fluor complex. Additionally, the appellate court found that the evidence UCC and Elementis submitted did not conclusively show there were significant changes to the interior walls at issue. The appellate court reversed the trial court finding that a reasonable fact finder could infer the decedent more likely than not was exposed to their asbestos products when he inhaled drywall debris at the Fluor complex.