In this unpublished opinion, the plaintiffs appealed after the trial court granted summary judgment to defendants Ford, Navistar, Gibbs International, and Kelsey-Hayes. The plaintiffs also filed motions for a new trial as to all four defendants, which the trial court denied. The decedent was a civilian employee at the Naval Construction Battalion Center; while he was not a mechanic, his visited the Construction Equipment Division (CED) where all vehicle repair work was performed. He died of mesothelioma. The appellate court reversed the summary judgments as to Ford, Navistar, and Kelsey-Hayes; it affirmed the judgment as to Gibbs.
The opinion contained an extensive recitation of the facts submitted by all parties. Heavy equipment mechanics testified as to the various repairs performed in the CED, and the brands of equipment. A worker in the purchasing department testified as to the brands of replacement parts. Decedent testified as to the repairs he witnessed. The plaintiffs’ evidence showed that the decedent visited CED frequently. Co-workers testified as to equipment from Ford, Navistar (International), and Kelsey-Hayes.
Gibbs acknowledged that it sold some replacement parts to the port for Navistar vehicles. In support of its motion for new trial, plaintiffs submitted the expert declaration of an industrial hygienist, who stated that asbestos fibers remained in the air for quite some time. The plaintiffs also submitted a declaration stating that Gibbs was the port’s main source for International replacement parts.
The plaintiffs argued that the defendants’ evidentiary showing was insufficient to shift to the plaintiffs the burden to raise triable issues of fact. As to Ford, while it was possible that Ford products were a source of the decedent’s asbestos exposure, the record was insufficient to allow such a finding by a preponderance of the evidence. Thus, the court agreed with the trial court that Ford shifted the burden of production to the plaintiffs. In so finding, the court cited various factually similar cases relied upon by the plaintiffs. The court then examined whether the plaintiffs met their burden to produce evidence showing a triable issue of fact as to Ford. The court noted: “In considering whether plaintiffs’ showing is sufficient to raise a triable issue, we bear in mind that ‘it is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.’” Here, among other things, the plaintiffs submitted evidence that at one point up to 150 pieces of equipment were serviced in CED on a daily basis, and that Ford vehicles were in the fleet. This evidence was sufficient to raise a triable issue of fact. The court found the same as to Navistar, and noted: “We recognize that this evidence is not overwhelming. As we have already explained, however, we must view the evidence in the light most favorable to the plaintiff.” The court also found the same with respect to Kelsey-Hayes.
However with respect to Gibbs, the court found that the plaintiffs failed to meet their burden.