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Summary judgment for Goodyear reversed in asbestos case

By Heather Isringhausen Gvillo | May 6, 2014

SAN FRANCISO (Legal Newsline) - A California appeals court has ruled that a gasket manufacturer failed to prove a former Navy mechanic was not exposed to its asbestos-containing gasket sheet material and should not be granted summary judgment, reversing a lower court's decision.

Plaintiff Donald Fields filed an appeal with California's First District Court of Appeals on Sept. 17, 2012, after defendant Goodyear Tire & Rubber Company was granted summary judgment. Agreeing with Fields, the court ruled that Goodyear did not meet its additional burden of production and that Fields produced evidence establishing a triable issue of material fact.

Judge Steven A. Brick delivered the unpublished opinion on April 29, with judges Anthony Kline and James A. Richman concurring.

Fields filed his lawsuit on Nov. 9, 2010, including negligence and strict liability claims against Goodyear. He asserts he was exposed to asbestos during his work as a mechanic from 1955 to 1992. Fields worked as a boilerman, welder and boiler tender in the United States Navy from 1955 to 1968, a welder in Virginia from 1969 to 1974 and a boiler tender in Virginia from 1968 to 1975 and worked on automobiles as a shade tree mechanic until the early 1990s.

The complaint was filed against several defendants, including Does 1 through 8500. On April 1, 2011, Fields filed an amendment to his complaint, substituting Goodyear for Doe No. 11.

His claims against Goodyear arise from his alleged use of the company's Wingfoot sheet gasket material from 1955 to 1967 during his work with boilers. Fields alleges he would cut the gasket material manufactured by Goodyear to size from the sheets. Scrap pieces would fall to the floor and would eventually be reduced to dust as workers walked on them. Fields added that the dust would then be swept up, creating airborne dust.

On Feb. 3, 2012, Goodyear moved for summary judgment, arguing Fields had no proof that he was ever exposed to an asbestos-containing product manufactured by Goodyear.

Goodyear referenced Fields' deposition, in which it says he failed to provide any specific recollections of working with Goodyear's Wingfoot sheet gasket material prior to the late 1970s. Asbestos was removed from its gasket materials then.

Fields' deposition was taken on June 9, 2011, which was more than six months before Goodyear moved for summary judgment. Fields testified that he used the Wingfoot gaskets during his career but couldn't pinpoint any specific time or place.

Goodyear submitted the deposition of former employee Ernest DeMarse, which was taken in Kentucky as part of an unrelated lawsuit, in an effort to support its contentions that it did not manufacture or sell asbestos-containing gasket material after 1969.

The company also presented evidence concerning other brands of gasket material it might have been associated with, but Fields only disputed arguments concerning Wingfoot gasket material.

Fields objected to DeMarse's deposition in his opposition, arguing that it was barred according to the Code of Civil Procedure and California Rules of Court rule 3.1115, the opinion states.

Fields also submitted a declaration including a Goodyear brochure with a depiction of a sheet of material imprinted with the words "Goodyear Wingfoot." He then asserted the picture in the brochure is a "fair representation of the logo of Goodyear Wingfoot I saw on sheet gasket material I worked with during my time in the Navy."

Fields included a declaration of expert Charlie Ay, who said that because Fields described using Wingfoot gaskets in high temperature and high pressure applications prior to 1970, it more than likely contained asbestos.

However, Goodyear objected the declaration, arguing it contradicted Fields' deposition testimony.

Then on April 18, 2012, the court held a hearing regarding the motion for summary judgment in which it overruled Goodyear's objection to Fields' declaration.

The court stated, "I think that your client identified the product, and I know that there is some dispute about it in his deposition, when he had some difficulty making some identifications of Goodyear Wing Foot. But I think that he went on to explain it. So I'm not having a problem there."

The court added that Goodyear shifted the burden of production.

"I don't - the issue is, can you, plaintiff, prove that the product Wing Foot, that was involved in this case, contained asbestos?" the court asked. "And I will be honest with you, I have a problem with that. And that's my tentative - or I'm leaning, after reading this again last night, is to grant the [motion for summary judgment]."

By April 26, 2012, the court granted Goodyear's motion for summary judgment, contending the defendant sustained its initial burden of production while Fields failed to provide evidence that created a triable issue as to whether he was exposed to asbestos-containing products attributable to Goodyear.

Fields appealed, arguing the trial court erred in its ruling. He claimed his arguments that he used Goodyear Wingfoot sheet gasket material prior to 1969 and that it more than likely contained asbestos were triable issues of material fact.

"There is triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof," Brick wrote.

"A defendant bears the burden of persuasion that 'one or more elements of' the cause of action in question cannot be established, or that 'there is complete defense' thereto," he added.

Goodyear then bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact, the appeals court ruled.

"[I]f he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact," Brick stated. "A prima facie showing is one that is sufficient to support the position of the party in question."

In regards to Goodyear's burden of production, Brick wrote that it did produce evidence in the DeMarse deposition showing it did not manufacture asbestos-containing gasket material after 1969.

Brick wrote that DeMarse's testimony only provides evidence that Goodyear ceased making asbestos-containing gasket material after 1969, but the complaint alleges Fields worked with Goodyear's products before and after 1969.

"[G]oodyear's failure to introduce evidence showing that Fields was not, or could not have been in contact with asbestos-containing Wingfoot material before 1969 leaves open the possibility that he was," Brick continued.

"Hence, by no negating contact with Goodyear's asbestos-containing Wingfoot gasket material at all relevant times, Goodyear failed to satisfy its initial burden of production," he added. "By itself, that is a reason to reverse the judgment."

Brick explained that even if Goodyear had satisfied its initial burden, it wouldn't have mattered. Fields' declaration included evidence that he had been exposed to asbestos-containing Goodyear Wingfoot sheet gasket material when he identified the logo.

Goodyear replied, stating Fields only raised "mere possibility" that he was exposed to asbestos-containing Wingfoot gasket material, which is insufficient to create a triable issue of fact.

However, Brick wrote that the problem with this argument is that Goodyear's evidence does not address whether it distributed non-asbestos-containing gasket material under the Wingfoot logo prior to 1969.

"We have examined the DeMarse deposition and find no reference to Wingfoot gasket material. Indeed, the excerpts provided support the proposition that Goodyear stopped using asbestos in gasket material in 1969, but not that it had sold non-asbestos-containing gasket material, much less under the Wingfoot logo, prior to that time," Brick wrote.

Brick explained that the question regarding summary judgment is not whether a plaintiff will be able to carry his burden of proof at trial that he was more than likely exposed to the defendant's asbestos-containing products.

"Rather, the question is, assuming Goodyear had met its burden of coming forward with evidence negating such contact, whether plaintiff's opposing evidence created a triable issue on the highly material fact of contact with defendant's product," Brick wrote.

"The likelihood of plaintiff satisfying his trial burden plays no role in determining whether a motion for summary judgment should be granted or denied."

From Legal Newsline: Reach Heather Isringhausen Gvillo at

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