Valve Defendants Obtain Summary Judgment Due to Lack of Causation Evidence

Court: United States District Court for the Central District of California

In this action, the plaintiffs alleged that the decedent, John Carpenter, contracted and died from mesothelioma due to exposure to asbestos, which occurred in part during his service in the Navy. Before the court are two motions: defendant Nibco Inc.’s motion for summary judgment or in the alternative summary adjudication (the “Nibco Motion”); and defendant Asco Valve Inc.’s (“Asco”) motion for summary judgment (the “Asco Motion”).

Four of the decedent’s coworkers testified about the work they did with the decedent, and the only product that certain of the fact witnesses associated with defendants Nibco and Asco were their valves. Plaintiffs do not claim that the valves themselves contained asbestos. Rather, they contend that certain gaskets attached to both of the defendants’ valves contained asbestos, and that there was asbestos-containing packing on, or around, the valves. The plaintiffs claim the decedent was asbestos-in-connection with the moving of defendants’ products through the removal and replacement of gaskets and/or packing materials that were affixed to the defendants’ valves.

The court reviewed the fact-specific testimony regarding the defendants’ products of the relevant fact witnesses, considered under the legal standard for considering a motion for summary judgment set forth by the Ninth Circuit. The court then turned to the choice of law issue. While finding it ultimately ‘not all that significant,’ the court held that that the claims of the plaintiffs were subject to federal maritime law, as questions regarding both the location of the tort and the connection to maritime commerce were answered in favor of maritime jurisdiction.

While the defendants’ motions discuss various issues, the dispositive question is whether the plaintiffs have adduced sufficient evidence to create a genuine issue of triable fact regarding the causation for the decedent’s injury. Regarding Nibco valves, the court held that the plaintiffs have adduced sufficient evidence to create a genuine dispute of fact regarding exposure to Nibco valves. Two of the plaintiffs’ two fact witnesses identified around 90 encounters of the decedent with Nibco valves (including gasket and packing work) over the course of about 21 years. Moreover, the plaintiffs introduced testimony indicating that federal specifications concerning the valves that Nibco produced for the Navy required gaskets and packing to be of an asbestos composition. Even though the witnesses were not certain as to whether the packing and gasket materials were original to the Nibco valves, the court found that it was a reasonable inference from the facts that, if Nibco were required by the Navy to sell the valves with asbestos-containing materials, the Navy would replace those materials with similar asbestos-containing materials.

However, the evidence of the decedent’s exposure to asbestos-containing Asco valves was much more limited. The testimony of the only-fact witness that recognized Asco as a relevant manufacturer seemingly confused Asco with another manufacturer, and the decedent’s exposure to Asco products was difficult to ascertain from the record. The court found it ‘regrettable’ that the plaintiffs did not provide an affidavit clarifying the meaning of the witness’s testimony, noting that a clarifying affidavit was essential in light of the facts in the record. While the plaintiffs fault Asco for failing to offer evidence that the other manufacturer ever supplied the Navy with the thermal control valves described by the witness, it is the plaintiffs’ burden to produce evidence that makes it more plausible than not that the decedent worked with asbestos-containing Asco valves.

Moreover, the plaintiffs failed to offer a single piece of evidence that would allow a rational jury to conclude that the valves that the witness associated with Asco required incorporation of asbestos-containing materials. The Supreme Court has explained that in the maritime tort context, a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize that danger. Air & Liquid Sys. Corp. v. DeVries, 139 S. Ct. 986, 995 (2019). Here, the plaintiffs failed to adduce sufficient evidence to satisfy the first part of DeVries because there was no evidence that the Asco valves at issue required asbestos.

Even viewing the evidence in light most favorable to the plaintiffs, one witness’ decades-old recollection that the decedent removed or replaced asbestos-containing materials from a thermal control valve —(which he referred to by the name of a different manufacturer) — does not create a genuine dispute as to whether Asco valves that the decedent worked on required incorporation of asbestos-containing parts, particularly in light of the evidence from Asco that it never sold a thermal control valve containing or requiring asbestos to the Navy. See Martinez v. Columbia Sportswear USA Corp., 553 F. App’x 760, 762 (9th Cir. 2014) (citing U.S. v. $ 11,500.00 in U.S. Currency, 710 F.3d 1006, 1019-20 (9th Cir. 2013)).

Based on the evidence presented, a rational jury could not find in the plaintiffs’ favor on the issue of exposure attributable to Asco’s valves, as there was no genuine dispute of material facts as to exposure or whether Asco’s valves were a substantial factor in causing the decedent’s injuries.

The court considered the central question of whether, in an asbestos tort action in federal court, a plaintiff is required to proffer expert causation testimony that is specific to the dose of asbestos attributable to a particular defendant to survive a motion for summary judgment. After conducting a thorough review of relevant case law, the court concluded that the answer to that question is yes, at least absent an extraordinary showing of actual exposure by a particular defendant’s product.

While the plaintiffs offered two expert opinions from Kenneth S. Garza and Dr. David Y. Zhang, both relied on the prohibited “every exposure” and/or “cumulative exposure” theories to support their conclusions on causation. The plaintiffs seem to offer two arguments to try to overcome the fact that their experts’ testimony is clearly insufficient to satisfy the substantial-factor test under McIndoe v. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Cir. 2016). First, the plaintiffs attempted to establish a dispute of fact as to whether Dr. Zhang provided a causation opinion as to exposures specifically from Nibco’s and Asco’s valves. The plaintiffs argued that although the expert reports were framed in generic terms, the experts’ testimony at trial would indicate that the specific exposures identified by their fact witnesses caused the decedent’s disease. However, whether the plaintiffs are permitted to proceed to trial is based on the evidence submitted with the motions, not on future hypothetical evidence. Furthermore, as the Seventh Circuit has reasoned, “[i]t would be misleading and confusing for an expert to opine — particularly using the legal terminology of “substantial contributing factor”—that [the decedent’s] cancer was caused by Defendants when the foundation for the opinion was that every exposure (without regard to dosage) contributes to cause cancer.” Krik v. Exxon Mobil Corp., 870 F.3d 669, 675 (7th Cir. 2017) (internal citations omitted).

Plaintiffs also argued that this action is distinguishable from McIndoe because the plaintiffs had submitted exposure evidence through the testimony of the fact witnesses that was missing in McIndoe. However, to the extent that the plaintiffs are arguing that evidence of some exposure alone is enough, McIndoe squarely rejects such a position. Instead, the plaintiffs may have intended to argue that where a plaintiff offers evidence regarding the frequency, amount, and duration of the exposure (“Specific Exposure Evidence”), the plaintiff is not required to offer defendant-specific expert causation testimony. The plaintiffs contend that if asbestos plaintiffs do offer Specific Exposure Evidence, they either can rely on “every exposure” causation testimony, or do not need expert causation testimony at all to survive summary judgment.

The court rejected this argument, finding that the plaintiffs had not offered Specific Exposure Evidence regarding the frequency, amount, and duration of exposure to both of the defendants’ products. Even giving every benefit of the doubt to the plaintiffs and assuming they had offered Specific Exposure Evidence, the court must still determine whether that evidence is sufficient to raise a triable issue of fact as to whether the injured person had substantial exposure to the relevant asbestos for a substantial time.

The court again rejected Plaintiffs’ argument. Rather, the Court agreed with the balance of courts that, particularly in cases with multiple defendants, causation requires that an expert connect the nature of the asbestos exposure and pair it with a Daubert-approved methodology that can be used to determine whether such an exposure was a substantial cause of the plaintiff’s injury” Krik, 870 F.3d at 675-76; Richards v. Copes-Vulcan, Inc., 213 A.3d 1196, 1203 (Del. 2019). The court ultimately held that a plaintiff’s expert is required to testify that the relative dose from a particular defendant was significant enough to allow a jury to find in favor of its being a substantial factor. Alternatively, asbestos plaintiffs can proffer expert testimony establishing that the exposure caused by a particular defendant would likely have been sufficient on its own to cause the disease.

Ultimately, the court concluded both that federal maritime law applies, and that under either source of law, the plaintiffs failed to offer sufficient causation evidence. Because the plaintiffs failed to adduce sufficient evidence to establish a triable issue of fact on causation against both defendants, defendants’ motions for summary judgment were granted as to the plaintiffs’ claims for negligence and strict liability, and to the loss of consortium claim, as such a claim is not recognized under maritime law.

Read the full decision here.