OAKLAND, Calif. (Legal Newsline) – A victory for a defendant in an asbestos lawsuit has been overturned by a California appeals court.
The First Appellate District ruled Aug. 4 that the Alameda County trial judge was wrong to disregard a plaintiff’s expert’s declaration regarding the possibility a worker on a Navy ship in 1973 was exposed to asbestos. There remains a question of whether the late Michael Harris could have been exposed by insulation repair work by Thomas Dee Engineering, the court ruled.
Harris died from mesothelioma in October 2014, and his widow and children are pursuing litigation against Thomas Dee Engineering.
The lawsuit says Harris was exposed to asbestos during repairs on the U.S.S. San Jose in 1973. At the same time, Thomas Dee was tearing out insulation on the ship as part of repairs. It is alleged Harris and this removal met in the boiler room, and the Harris family’s expert said he didn’t need to be present in the boiler room at the exact time the repairs were being conducted.
But that expert, William Ewing, had first testified, “If he wasn’t present when the work was done, then I don’t think there’d be any issue regarding any exposure.”
The trial judge ruled the Harris family couldn’t allege he was in the boiler room at the same time work was being done there, rejecting Ewing’s contention that asbestos fibers could have remained in the air for up to 80 hours.
“Viewed in the light most favorable to Plaintiffs, the evidence supports a reasonable inference that Thomas Dee workers disturbed asbestos-containing materials as part of their repair work on the U.S.S. San Jose in Fall 1973, and that Mr. Harris was exposed to it due to re-entrainment of the asbestos fibers,” Justice Mark Simons wrote.
“It is, of course, for the jury to decide whether the evidence of exposure is sufficient to prevail at trial, but at summary judgment we must resolve ‘any evidentiary doubts or ambiguities in plaintiff’s favor.’”