Grant of Summary Judgment to Contractor Reversed as Expert’s Declaration Was Not Given Appropriate Weight

Court of Appeal of California, First Appellate District, Division Five, September 2, 2021

In this asbestos action, decedent Michael Harris testified that he served as a hull maintenance technician on the U.S.S. San Jose from August 1973 until May 1974. During this time, he patrolled every part of the ship to check for fires and leaks, including in the boiler room. In Fall 1973, the Thomas Dee Engineering Company performed repairs on the boilers, including removal of the existing insulation and refractory material. While Harris testified that he observed non-Navy persons working in the boiler room, he did not observe anyone working on the boilers themselves.

Harris’ expert William Ewing, a certified industrial hygienist, was deposed in this matter. When questioned regarding Harris’ failure to observe any work being performed on the boilers, Ewing testified that “[i]f [Harris] wasn’t present when the work was done, then I don’t think there’d be any issue regarding any exposure.”

Thomas Dee moved for summary judgment, arguing that the plaintiff has not put forth any evidence that Thomas Dee caused Harris to be exposed to asbestos. Thomas Dee highlighted Ewing’s testimony that “Harris would not have been exposed to asbestos if he was not present when the work was being done.” In opposition to Thomas Dee’s motion, Harris submitted a declaration from Ewing, in which he opined as to the “re-entrainment” phenomenon. Specifically:

Mr. Ewing opined that Mr. Harris ‘did not need to be present at the exact time that the insulation block was being removed, swept up, and/or installed by Thomas Dee workers to be exposed.’ Instead, the removal of the asbestos-containing refractory materials from the boilers would have exposed Mr. Harris to asbestos whenever he was in the boiler room because asbestos fibers can remain suspended for up to 80 hours before settling out of the air and because the fibers can be continuously re-suspended … Mr. Ewing stated, ‘This cycle of re-suspension is well-documented and is generally accepted in the industrial hygiene field. There is near universal agreement that asbestos fibers persist in the environment almost indefinitely and thus can represent a continuous potential source of exposure when present in buildings or other enclosed spaces.’

As part of their reply, Thomas Dee argued that the trial court should disregard the declaration since the opinion was not previously disclosed during Ewing’s deposition, as well as since the declaration contradicted Ewing’s deposition testimony. The trial court granted Thomas Dee’s motion for summary judgment. The trial court rejected the declaration as an “attempt to create a factual issue as ‘[t]he declaration offers a new, previously not disclosed opinion that is contradicted by his deposition testimony.’”

Harris appealed the decision and order of the trial court, asserting that the trial court erred by refusing to consider and give weight to Ewing’s declaration. Ultimately, the appeals court agreed and rejected Thomas Dee’s contentions. The appeals court stated that Ewing’s re-entrainment theory of exposure is not inadmissible in a declaration in opposition to summary judgment simply because this theory was not previously disclosed in the litigation. Thomas Dee also did not cite to authority that would “render Mr. Ewing’s testimony inadmissible at trial.” Further, any difference in Ewing’s opinions would go to Ewing’s credibility, and not to the admissibility of the opinion. Specifically, the appeals court set forth that “the testimony is admissible unless the determination is made at trial that admission of the testimony would be prejudicial.” Further, “even if the re-entrainment theory was new, given that it was disclosed well before trial, there was little basis for the court below to conclude that the expert’s opinion was incurably inadmissible at trial. Thus, Mr. Ewing’s testimony was not, at the time of the summary judgment motion, inadmissible at trial.”

The appeals court also held that the trial court erred by not giving Ewing’s declaration regarding the re-entrainment theory of exposure any weight. The appeals court stated that “Ewing’s declaration relates a scientific theory that he apparently did not discuss in his deposition, and his statements in the declaration do not contradict any prior testimony regarding facts he observed.” The appeals court set forth that “Ewing’s declaration showed there was in fact a triable issue as to exposure under the re-entrainment theory, even if he neglected to mention that phenomenon during his deposition.” Further, “the trial court was not presented with a declaration that flatly contradicted deposition testimony and provided no basis to conclude that the opinion expressed in the declaration was actually the valid one.” As the declaration created a triable issue as to whether Harris was exposed to asbestos through Thomas Dee’s work, the appeals court reversed the trial court’s order granting summary judgment to Thomas Dee.

Read the full decision here.