The plaintiff filed suit against multiple defendants, including Moore Drydock, alleging he developed mesothelioma as a result of his work onboard the USS Carter Hall. The plaintiff further alleged that defendant Moore Drydock built the USS Carter Hall. Specific sources of exposures alleged by the plaintiff included gaskets, packing, and pipe insulation.
The defendant moved for summary judgment, arguing that no issue of fact existed. The plaintiff opposed and took the position that the declaration of its insulation expert, Charles Ay, offered the fact that portions of the original insulation were on the USS Carter Hall when the plaintiff served aboard in the 1960s. The trial court granted summary judgment. The plaintiff appealed.
The court noted its standard of review for summary judgment appeal is de novo. The plaintiff argued that the defendant did not shift the burden to the plaintiff. The defendant argued that the plaintiff’s discovery responses lacked any fact that the plaintiff had worked around asbestos containing equipment for which the defendant was responsible. The plaintiff conceded that they had no personal knowledge of exposure to the defendant’s products but that void does not satisfy the burden upon the defendant that the plaintiff could not garner evidence related to the cause of action. The court disagreed and found the defendant met its prima facie showing that the plaintiff “did not and could not obtain admissible evidence necessary to show causation.” Specifically, the court found the case to be similar to the Andrews case where the plaintiff’s discovery responses also contained general allegations of exposure. The court found that the responses were essentially a concession that the plaintiff had no further information or facts. After the burden shifted, the plaintiff had the burden of production to prove that an issue of material fact existed. Here, the plaintiff argued that Ay’s declaration that original asbestos was still onboard the USS Carter Hall satisfied that requirement. However, the court pointed out that Ay did not have personal knowledge regarding the building of the USS Carter Hall as Ay did not serve onboard that ship until years after its construction. The court stated that the threshold question is whether exposure to the defendant’s product is a fact at issue. “If there has been no exposure, there is no causation.” The court also pointed out that the Dumin and Shiffer decisions also granted summary judgment for testimony that did not raise an issue of fact or where the inference was one where exposure “would be only as likely or even less likely.”
Accordingly, summary judgment was affirmed.