Summary Judgment Affirmed Based on Lack of Admissible Evidence of Secondary Asbestos Exposure Court of Appeal, First District, Division 2, California, March 8, 2018

CALIFORNIA —Sandra Foglia and her children filed suit against Moore Dry Dock (MDD), alleging that the decedent, Ronald Foglia, was exposed to asbestos via his late father, Felix Foglia, and developed mesothelioma. The plaintiffs alleged that Felix was exposed to asbestos while working as an electrician at a shipyard operated by MDD.

MDD moved for summary judgment, claiming it owed no duty of care to the decedent for secondary exposure and that the plaintiffs could not reasonably obtain evidence to show that the decedent was exposed to asbestos from the clothing and person of Felix as result of his employment at MDD from 1942-45. The trial court held that MDD owed a duty of care, but also ruled that the evidence was not sufficient to support a reasonable inference that Felix was exposed to asbestos at MDD.

The plaintiffs appealed, contending that the trial court erred in finding MDD made a sufficient showing, based on plaintiffs’ factually devoid discovery responses, to shift the burden of proof to them on the issue of exposure of Felix. The plaintiffs’ specifically stated that MDD failed to conduct comprehensive discovery and failed to disclose all the evidence it had already discovered and that the plaintiffs’ discovery responses were sufficiently detailed to raise a triable issue of fact on exposure. The plaintiffs asserted that even if the burden shifted to them, their evidence raised triable issues as to Felix’s exposure at MDD. Lastly, the plaintiffs stated that the court erroneously excluded lay and expert testimony that raised triable issues as to Felix’s exposure at MDD.

On appeal, the court held that the plaintiffs did not produce admissible evidence raising a triable issue of fact. The court ruled that the decedent’s testimony about his father’s work at MMD, which concluded when the decedent was only five years old, was based entirely on hearsay statements made to him by other family members. The court further concluded that even if it admitted the deposition testimony, it was not sufficient to show that Felix was exposed to asbestos, but rather simply that he worked at MMD as an electrician from 1942-45.

Ultimately, the court stated that “there is no admissible evidence that decedent’s father worked as an electrician, that he worked at the shipyard or on ships at MMD, that he worked with or in proximity to asbestos-containing materials, or that he worked with or in proximity to asbestos-containing materials that would have released asbestos fibers into the air to which he was exposed.” The ruling was upheld, and summary judgment affirmed.

Read the full decision here.

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