Cooling Tower Defendant Granted Summary Judgment Due to Lack of Product ID

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United States District Court for the Northern District of California

In the instant complaint, the plaintiffs allege that Ronald Viale used, handled, or was otherwise exposed to asbestos and asbestos containing products provided by or manufactured by the defendants, that he contracted the terminal cancer, mesothelioma as a result of such exposure, and that, in July 2018, he died. Based on these allegations, plaintiffs, who are, respectively, the decedent’s wife and daughter, asserted against defendant SPX the following four Causes of Action: “Negligence,” “Strict Liability,” “False Representation,” and “Intentional Tort.”

Defendant SPX argued the plaintiffs lacked evidence to establish that Viale was exposed to any asbestos-containing product, specifically cooling towers manufactured by SPX’s predecessor Marley Cooling Tower Company. To support its motion for summary judgment, SPX submitted a declaration by its Claims and Litigation Manager and, in addition, submitted the plaintiffs’ initial disclosures, responses to interrogatories, and responses to requests for production of documents, as well as excerpts from the deposition of each plaintiff, and excerpts from the deposition of each of Viales co-workers.

The plaintiff opposes the motion and argues that the testimony given by Bernard Upton and Steven Upton, as well as the expert reports of Charles Ay and James Dahlgren, indicate that they have submitted evidence sufficient to raise a triable issue as to whether Viale was exposed to asbestos contained in a cooling tower manufactured by Marley.

The court found the plaintiffs’ arguments to be unavailing. First although, Bernard Upton, Viale’s co-worker testified that Viale worked near cooling towers at two jobsites, he did not testify as to the make of either tower. Next, although Steven Upton testified that, at one jobsite, “carpenters” were performing “some maintenance” on the exterior wood of a Marley cooling tower located “across the road” and “probably 150 feet” from where he and Viale were working plaintiffs have offered no evidence to support a finding that the cooling tower contained asbestos let alone that any asbestos would have been released as a result of exterior maintenance, or that Viale was anywhere in the vicinity of the tower at the time of any such release. Lastly, Charles Ay’s opinion that Viale was “exposed to asbestos” from “cooling towers at various locations” and James Dahlgren’s opinion that “Viale developed pathologically-confirmed mesothelioma cancer” as a result of his exposure to asbestos containing products, including “cooling towers,” are both predicated on the deposition testimony of Bernard Upton and Steven Upton and, consequently, assume a fact not supported by the evidence.

Therefore, defendant SPX’s motion for summary judgment was granted. Defendants Foster Wheeler and Union Carbide also filed similar motions and were also granted.