Heather Isringhausen Gvillo Jul. 14, 2014, 3:09pm

LOS ANGELES (Legal Newsline) - A California appeals court has reversed a trial court's summary judgment award in favor of an insulation company in an asbestos lawsuit on the grounds that it failed to meet its burden of proof.

Justice H. Walter Croskey delivered the July 8 opinion in the Court of Appeal of the State of California Second Appellate District, Division Three. Justices Joan D. Klein and Richard Dennis Aldrich concurred.

Claimant Rose Marie Ganoe, individually and as special administrator of the estate of Mark Ganoe, filed the appeal of the trial court's approval of summary judgment in favor of Metalclad Insulation Corporation.

Metalclad was granted summary judgment by the trial court based on the plaintiffs' "factually devoid" discovery responses, a statement by the decedent's co-worker where he said he had never heard of the defendant and another statement by a Metalclad employee that it had never performed work at the decedent's workplace.

However, the defendant also produced a document showing that it had, in fact, performed work at the decedent's workplace.

Croskey held that the plaintiffs had provided enough specific triable facts linking Metalclad to the decedent's asbestos exposure. As a result, the appeals court reversed the summary judgment order.

Ganoe worked as a utility man at the Goodyear Tire & Rubber Company plant in Los Angeles from 1968 until 1979. He was diagnosed with mesothelioma in September 2010 allegedly resulting from asbestos exposure during his work at the plant.

Three months later, he filed an asbestos lawsuit in the Superior Court of Los Angeles County.

Ganoe died while the action was pending, converting the case to a survival and wrongful death action.

In October 2012, Metalclad sought summary judgment, arguing the plaintiffs did not provide sufficient evidence showing Ganoe was exposed to asbestos for which the defendant was liable.

Additionally, Metalclad claimed the plaintiffs' discovery responses were "factually devoid."

In support of its motion, Metalclad submitted documents including:

-The plaintiffs' boilerplate response to Metalclad's special interrogatory seeking "all facts" regarding Ganoe's exposure to asbestos-containing products supplied, installed or removed by the defendant;

-A case report identifying Ganoe's former co-worker Richard Ettress as the sole product identification witness for Metalclad products and services;

-An excerpt from Ettress's deposition testimony in which he admitted that he had never heard of Metalclad; and

-A declaration from Metalclad employee, Don Trueblood, in which he stated that "Metalclad has no information, documents to suggest, or knowledge of having ever performed any work or supplied materials to be used" at the plant.

In December 2012, Metalclad provided a document at Trueblood's deposition showing it had performed insulation work on steam piping at the plan in 1974.

Trueblood responded that Metalclad did not perform a search of its records as requested by the plaintiffs but had initially provided discovery responses based on a search performed in another case involving Goodyear.

As a result, the plaintiffs served an amended discovery response to the defendant, stating that in 1974 a new machine was added to the plant, requiring new steam pipes to be installed and insulated. The tie-ins of the new asbestos-containing products required removal of the old insulation.

The decedent was allegedly present during this process, causing him to breathe asbestos dust. The plaintiffs allege Metalclad performed the insulation work on steam piping at the plant.

Then in January 2013, the plaintiffs filed their opposition to the motion for summary judgment, submitting excerpts from the depositions of Ettress, Ganoe and Trueblood, a declaration by an expert witness and another by Ettress.

Ganoe's deposition included a testimony stating that the steam lines on the new machine contained insulation that "looked like dirty chalk," and that he was present during the 'dusty' insulation work.

In Etterss' declaration, he stated that he did not recall any other construction requiring insulation work other than the new machinery in 1974.

Expert witness Charles Ay stated that the probability that insulation contained asbestos when hot pipes were involved exceeded 99 percent.

However, Metalclad argued that it satisfied its burden on summary judgment and that the plaintiffs failed to raise a triable issue of fact by merely speculating that the defendant performed the insulation work and that it involved removing old insulation.

Judge Emilie Elias granted summary judgment, finding that the defendant had met its burden of proof and that the plaintiffs failed to raise a triable issue of fact.

She agreed that the information was speculative and that the plaintiffs' evidence failed because the Metalclad document did not prove that it had performed the work in the vicinity of Ganoe.

The plaintiffs appealed the decision, arguing the trial court erred when concluding Metalclad had shifted the burden of proof and the plaintiffs had failed to raise any triable issue of material fact.

Croskey explained that while the trial court held that Metalclad met its burden of proof, it is still unclear whether Elias considered the plaintiffs' amended response to Metalclad's discovery.

"It would be inequitable to allow a moving party to withhold relevant discovery and then meet its burden on summary judgment without consideration of such newly discovered evidence or the opposing party's response to that evidence," Croskey wrote.

Metalclad argued that the plaintiffs filed an inadequate response to its "all facts" discovery request.

It also argues that Ettress's statement that he had never heard of Metalclad is enough to demonstrate that the plaintiffs could not prove Ganoe had been exposed to asbestos from the defendant.

However, Croskey held that the plaintiffs' amended response contained "specific facts" showing that Metalclad had exposed Ganoe to asbestos in 1974 when it performed insulation work at the plant.

"Therefore, this response did not lead to an inference that the plaintiffs could not prove causation," he wrote.

Furthermore, Croskey held that the defendant only submitted a two-page excerpt from Ettress's deposition and failed to provide evidence that Ettress was able to identify other contractors who had performed the insulation work.

Metalclad did not show Ettress its logo to see if he could recognize it. They merely asked him if he recognized the name more than 40 years after the alleged events.

"The negative response to that question by itself was insufficient to create an inference of nonexposure or that the plaintiffs could not prove exposure by other means," Croskey wrote. "On these grounds, the trial court erred in concluding that Metalclad had shifted the burden of proof."

As for Metalclad's allegations on the plaintiffs' failure to raise triable issues of material fact, Croskey held that summary judgment should have been denied even if the defendant met its burden.

He explained that the plaintiffs brought evidence showing Metalclad performed insulation work on steam piping at the plant in 1974, that the only construction work requiring insulation work at the plant in 1974 occurred in Ganoe's department when the new machinery was installed and that Ganoe worked was present in the vicinity of the insulation work where breathable asbestos dust was present.

"Viewed in its best light, this evidence supported a reasonable inference that the plaintiffs could show causation," Croskey wrote. "Therefore, the trial court erred in finding that the plaintiffs had failed to raise a triable issue of fact."

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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