Lack of Factual Basis for Plaintiffs’ Assertion of Causation Yields Grant of Summary Judgment

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After the decedent died of mesothelioma, her husband and adult son filed a wrongful death and survivorship complaint against numerous defendants. W.W. Henry Company, predecessor to the Henry Company (who was also named and not a party to this motion) filed a motion for summary judgment based upon lack of exposure. The appellate court affirmed the trial court’s granting of this motion.

The plaintiffs alleged exposure to asbestos from the early 1970s-early 1980s during the decedent’s work as an art teacher and sculptor, and from home remodeling performed in 1980. Interrogatory responses identified the decedent’s husband installing, scraping, and removing asbestos-containing roofing mastic made by W.W. Henry Company. The plaintiff testified he associated W.W. Henry with “Henry roof compounds,” used Henry’s roof compound on his house, and that the decedent did not help him with roofing work but did his laundry.

W.W. Henry Company filed a motion for summary judgment, relying on the plaintiffs’ factually devoid responses to comprehensive discovery requests and a declaration from an industrial hygienist stating that neither the plaintiff nor the decedent was exposed to asbestos from W.W. Henry Company products. Whether the roofing cement contained asbestos was unconfirmed and if it was present, the fibers would be encapsulated. In response, the plaintiffs argued that the defendant did not satisfy its threshold burden.

The court relied upon California supreme court opinions holding that a defendant may meet his initial burden by simply pointing out “that the plaintiff does not possess, and cannot reasonably obtain, evidence that would allow such a trier of fact to find [causation] more likely than not.” Further, evidence that the defendant propounded sufficiently comprehensive discovery requests and that the plaintiff provided factually insufficient responses can raise an inference that the plaintiff cannot prove causation.

Here, the plaintiff could not identify the brand name or trade name of any W.W. Henry Company product he allegedly used on the roof, and he could not recall the type of product it was. No evidence showed the product used was made by W.W. Henry Company, versus Henry Company. No evidence supported the presence of asbestos in the roofing product. Aside from the plaintiff’s testimony, the plaintiffs produced no admissible evidence creating a triable issue of material fact. As such there was no factual basis for the plaintiff’s general assertion of causation, and summary judgment was affirmed.

Read the full decision here.