Court: United States District Court for the Central District of California
In that lawsuit, plaintiffs allege that the deceased, John Carpenter, contracted and died from mesothelioma as a result of exposure to asbestos, some of which occurred while serving in the Navy. Two motions are before the Court: Defendant Nibco Inc.’s motion for summary judgment or in the alternative summary judgment (the “Nibco Motion”); and defendants Asco Valve Inc. (“Asco”)’s motion for summary judgment (the “Asco Motion”).
Four of the deceased’s employees testified about the work they did on the deceased, and the only product that certain witnesses to the crime linked to defendants Nibco and Asco were their valves. The plaintiffs do not allege that the valves themselves contained asbestos. Rather, they allege that certain gaskets fitted to both of the defendants’ valves contained asbestos and that gaskets containing asbestos were located on or around the valves. Plaintiffs allege that the deceased used asbestos in connection with the shipment of defendants’ products by removing and replacing gaskets and/or packaging materials attached to defendants’ valves.
The court considered the factual testimonies of the relevant witnesses regarding the defendants’ products, which were examined under the legal standard established by the Ninth Circuit for considering a summary judgment motion. The court then addressed the issue of choice of law. While the court ultimately found this “not so relevant,” it ruled that the plaintiffs’ claims were governed by federal maritime law, since both questions about the location of the tort and its relation to maritime commerce would be answered in favor of maritime jurisdiction.
While the defendants’ motions address various issues, the key question is whether the plaintiffs have presented sufficient evidence to create a genuine factual question of causation of the testator’s injury. With respect to Nibco valves, the court ruled that the plaintiffs presented sufficient evidence to establish a genuine dispute of fact regarding exposure to Nibco valves. Two of plaintiffs’ two factual witnesses identified approximately 90 encounters by the decedent with Nibco valves (including sealing and packaging work) over a period of approximately 21 years. In addition, the plaintiffs submitted testimony showing that federal specifications relating to the valves Nibco manufactured for the Navy required seals and packaging to be made of asbestos. Although the witnesses were unsure whether the packing and gasket materials were originally for the Nibco valves, the court found that it was a reasonable inference from the facts that if Nibco were required by the Navy to fill the valves with asbestos for sale – containing materials, the Navy would replace those materials with similar asbestos-containing materials.
However, the evidence of the deceased’s exposure to Asco valves containing asbestos was much more limited. The testimony of the only factual witness who acknowledged Asco as the relevant manufacturer appeared to have confused Asco with another manufacturer and the deceased’s exposure to Asco products was difficult to ascertain from the records. The court found it “regrettable” that the plaintiffs had not submitted an affidavit clarifying the meaning of the testimony, noting that a clarifying affidavit was essential given the facts in the records. While the plaintiffs allege Asco failed to provide evidence that the other manufacturer ever supplied the Navy with the thermal control valves described by the witness, it is the plaintiffs’ duty to present evidence that makes it more plausible than not that the deceased has worked with asbestos – with Asco valves.
Furthermore, the plaintiffs have not presented a single piece of evidence that would allow a reasonable jury to conclude that the valves that the witness linked to Asco must have contained asbestos-containing materials. The Supreme Court has stated that in the context of maritime disputes, a product manufacturer has an obligation to warn if (i) its product requires the incorporation of a part, (ii) the manufacturer knows or has reason to believe that the integrated product is likely to do so do will be dangerous for the intended use and (iii) the manufacturer has no reason to believe that the users of the product will recognize this hazard. Air and Fluid System Corp. against DeVries, 139 S.Ct. 986, 995 (2019). Here the plaintiffs failed to present sufficient evidence to satisfy the first part DeVries because there was no evidence that the Asco valves in question required asbestos.
Even considering the evidence in favor of the plaintiffs, a witness’s decades-old recollection that the decedent removed or replaced asbestos-containing materials from a thermocontrol valve — (which he referred to by the name of another manufacturer) — the case is not a genuine dispute establish whether Asco valves on which the decedent worked required the incorporation of parts containing asbestos, particularly given Asco’s evidence that it has never sold a thermal control valve to the Navy that contained or required asbestos. See Martinez v Columbia Sportswear USA Corp.553 F. App. 760, 762 (9. Cir. 2014) (citing US v. $11,500.00 in US currency710 F.3d 1006, 1019-20 (9th Circle 2013)).
Based on the evidence presented, a reasonable jury could not rule in favor of the plaintiffs on the issue of exposure attributable to Asco’s valves because there was no genuine dispute as to material facts regarding the exposure or whether Asco’s valves were a material one Factor in the emergence of which were injuries to the deceased.
The Court considered the key issue of whether a plaintiff in an asbestos-related tortious action in federal court is required to produce an expert causality report relating to the dose of asbestos attributable to a particular defendant in order to validate a motion for summary judgment to pass judgement. After a thorough review of the relevant case law, the court concluded that the answer to this question is yes, at least in the absence of exceptional evidence of actual exposure from a particular defendant’s product.
While plaintiffs received two expert reports from Kenneth S. Garza and Dr. David Y. Zhang both relied on the prohibited ‘any exposure’ and/or ‘cumulative exposure’ theories to support their causality conclusions. Plaintiffs appear to put forward two arguments to try to overcome the fact that their experts’ testimony is clearly insufficient to pass the essential factors test McIndoe vs. Huntington Ingalls Inc., 817 F.3d 1170, 1173 (9th Circle 2016). First, plaintiffs attempted to establish a factual dispute as to whether Dr. Zhang provided a causality opinion on exposures specifically from Nibco and Asco valves. Plaintiffs argued that although the expert reports were general, the testimonies of the experts in court indicated that the specific exposures identified by their factual witnesses caused the deceased’s illness. However, whether plaintiffs will be allowed to stand trial depends on the evidence filed with the motions, not future hypothetical evidence. Furthermore, the Seventh Circle has argued: “[i]It would be misleading and confusing for an expert to mean this, especially using the legal terminology of ‘substantial contribution’ [the decedent’s] Cancer was caused by the defendants when the basis for the opinion was that all exposure (regardless of dosage) contributes to the development of cancer.” Krik Vs Exxon Mobil Corp.870 F.3d 669, 675 (7. Cir. 2017) (internal citations omitted).
Plaintiffs also argued that this action was distinguishable from McIndoe because the plaintiffs had presented evidence of discovery due to the lack of statements by the factual witnesses McIndoe. However, to the extent that plaintiffs argue that evidence of some exposure alone is sufficient, McIndoe firmly rejects such a position. Instead, Plaintiffs may have intended to argue that if a Plaintiff offers evidence regarding frequency, level and duration of exposure (“Specific Exposure Evidence”), Plaintiff is not required to provide defendant-specific expert testimony. Plaintiffs contend that when asbestos claimants present specific exposure evidence, they can either rely on the causality testimony of “any exposure” or need no expert testimony at all to survive summary judgment.
The court rejected this argument, finding that the plaintiffs had not provided specific evidence of exposure to the frequency, level and duration of exposure to either of the defendants’ products. Even if the plaintiffs are upheld in the doubt and are presumed to have presented specific evidence of exposure, the court must still determine whether that evidence is sufficient to raise a reasonable factual question as to whether the injured person had significant exposure to the relevant asbestos a considerable time.
The court again rejected the plaintiffs’ arguments. Rather, the court agreed with the courts’ consideration that, particularly in multi-defendant cases, causality requires an expert to relate the nature of the asbestos exposure and to a daubert-approved method that can be used to determine whether such exposure was a significant cause of plaintiff’s injury” crick870 F.3d at 675-76; Richards v Copes-Vulcan, Inc., 213 A.3d 1196, 1203 (Del. 2019). The court ultimately ruled that a plaintiff’s expert witness must testify that a particular defendant’s relative dose was significant enough to enable a jury to decide that it was a material factor. Alternatively, asbestos claimants can provide expert reports showing that the exposure caused by a particular claimant alone would probably have been sufficient to cause the disease.
Ultimately, the court came to the conclusion that both the Federal Maritime Law applies and that the plaintiffs have not provided sufficient evidence of causality according to either legal source. Because the plaintiffs did not present sufficient evidence to establish a reasonable factual question of causality against either defendant, the defendants’ motions for summary judgment were granted with respect to the plaintiffs’ claims of negligence and strict liability and for loss of syndicate claim to such a claim is not recognized under maritime law.
Read the full decision here.