Motion-Secondary: JOYCE JUELCH, ET AL VS. ASBESTOS DEFENDANTS (B/P)AS REFLECTED ON EXHIBITS et al

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                                1] LISA L. OBERG (BAR NO. 120139)
DANIEL B. HOYE (BAR NO. 139683)
2 | ALECIA E. COTTON (BAR NO. 252777)
MCKENNA LONG & ALDRIDGE LLP ELECTRONICALLY
3 | 101 California Street FILED
41st Floor Superior Court of California,
4 | San Francisco, CA 94111 County of San Francisco
Telephone: (413) 267-4000 PR 13 2010
5 | Facsimile: (415) 267-4198 APF of the Court
BY: CHRISTLE ARRIOLA
6 | Attorneys for Defendant Deputy Clerk
METALCLAD INSULATION CORPORATION
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10
11 | JOYCE JUELCH and CASE No, CGC-09-275212
NORMAN JUELCH, SR.,
12 DECLARATION OF ALECIA E. COTTON IN
Support OF DEFENDANT'S MOTION
13 Limine To EXCLUDE THE TESTIMONY OF
Plaintiffs, CHARLES AY {MIL 27]
14
v. TRIAL DATE: APRIL 5, 2010
15 Depr.: 604
ASBESTOS DEFENDANTS, (BP), e¢ al, JUDGE: HONORABLE MARLA J, MILLER
16
17
Defendants.
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27
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McKenna Lone &
ALDRIDGE LLP. no —|
ATTORNEY AT LAW DECLARATION OF ALECIA E. COTTON IN SUPPORT OF DEFENDANT'S MOTION IN UMINE TO EXCLUDE THE TESTIMONY OF CHARLES AY
SAN FRANCISCO (Mil. 27}

SF.27418573.428

MCKENNA LONG &
ALORIOGE LLP
ATTORNEYS AT Law
SAN FRANCISCO

1, ALECIA E. Corron, declare as follows:

1. Iam an attorney at law duly licensed to practice before all the courts in the State of
California. | am an associate with the law firm of McKenna Long & Aldridge LLP, attorneys of
record for the defendant herein. | am one of the attorneys responsible for the litigation of the
above-cntitled case, and, as such, have personal and complete knowledge of the contents of our
files, especially as pertains to the issues and facts presented in this declaration. | am competent to
and do testify to the matters herein on personal knowledge.

2. Attached hereto as Exhibit A is a true and correct copy of the relevant portions of
Charlie Ay’s deposition transcript in the current case dated March 24, 2010.

3. Attached hereto as Exhibit B is a true and correct copy of the relevant portions of
Charlie Ay’s deposition transcript in James and Gloria Ellsworth v. AC and S, Inc. et al, ACSC
No. RG 08 405462, dated March 26, 2009.

4, Attached hereto as Exhibit C is a true and correct copy of Andrews v. Foster
Wheeler, LLC (2006), 138 Cal.App.4th 96.

I declare under penalty of perjury under the laws of the State of California, that the
foregoing is true and correct and that this Declaration was executed on dg 5 , 2010, at

San Francisco, California.
f

ALECIA E. Corron

-L-

DECLARATION OF ALECIA E. COTTON IN SUPPORT OF DEFENDANT'S MOTION IN LIMINE TO EXCLUDE THE TESTIMONY OF CHARLES AY
IMI. 27}
SP:27418573.1JOYCE JUELCH vs. ASBESTOS DEFENDANTS March 24, 2010 CHARLES AY

PB WwW Be

24

25

CERTIFIED COPY
SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

JOYCE JUELCH and NORMAN JUELCH, SR.,
Plaintiffs,

vs. No. CGC-09-

275212
ASBESTOS DEFENDANTS,

Defendants.

DEPOSITION OF CHARLES AY, a witness herein,

noticed by McKENNA LONG & ALDRIDGE LLP, at
400 North Tustin Avenue, Suite 301, Santa Ana,
California, at 2:33 p.m., on Wednesday, March 24,

2010, before Julie Heyward, CSR 7907.

Hutchings Number 253453

HUTCHINGS COURT REPORTERS, LLC - GLOBAL LEGAL SERVICES
800-697-3210JOYCE JUELCH vs. ASBESTOS DEFENDANTS March 24, 2010 CHARLES AY

L And you and I spoke a bit off the record and you
2 have apparently reviewed an Exhibit A or plaintiff's

3 work history from 8-12-2009; is that correct?

4 A. That is correct.

5 Q. Why don't we append that to the deposition as
6 eur Exhibit 1. [EXH-1]

7 Have you reviewed anything else?

2 A. No.

9 MS. HENLE: How many pages is it?
10 THE WITNESS: Yes, I have. And let me find my

11 mess, here.

12 doyce Juelch, February -- work history. Just a

13 second.
—

14 I signed a declaration in opposition to Dillingham

15 back on March the 10th, and in doing that I reviewed a

16 declaration signed by -- is it Juelch? How would you

17 pronounce that?

18 Q. dJuelch.
19 A. Juelch.
2 -- by Ms. Juelch in this case, so I did read a

21 declaration.

22 And then also on 3-22, I signed another declaration

23 in opposition to Dillingham. It's just a different

«

24 version. And, again, I reviewed the declaration in the
ae

25 matter.
a

Page 5 E

HUTCHINGS COURT REPORTERS, LLC - GLOBAL LEGAL SERVICES
800-697-3210CHARLES AY

JOYCE JUELCH vs. ASBESTOS DEFENDANTS March 24, 2010
1 So I have reviewed a declaration of Joyce Juelch
2 and an Exhibit A.
3 Q. Okay.
4 And signed a declaration pertaining to the
5 contractor known as Dillingham; correct?
6 A. That is correct, yes. i
7 Q@. Have you reviewed any documents, any
8 declarations, anything involving Metalclad in this case
9 outside of the Exhibit A?
10 A. No, I have not.
11 Q. Okay.
12 When were you first contacted?
13 A. Let's see here. I also have that in front of
14 me. I've got everything today.
15 I received on February the 8th, the Exhibit A,
16 which has been marked as Defendant 1. It was a cover
17 letter, "Enclosed for your deposition and trial, please
18 find materials per enclosed binder." In the enclosed
19 binder was -- says "Work History, Service List," and
20 "Caption Page." And that's under the letter -- or that
21 expert binder is under a date of February 5, '10.
22 Q. Okay.
23 Have you spoken to anybody regarding this case?
24 A. No, I have not.
25 Q. All righty.

Page 6

HUTCHINGS COURT REPORTERS, LLC - GLOBAL LEGAL SERVICES.
800-697-3210JOYCE JUELCH vs. ASBESTOS DEFENDANTS March 24, 2010 CHARLES AY
Page 7
1 Do you know Ms. Juelch or her husband? :
2 A. No.
~
3 Q. Okay.
4 What's your task, as you understand it, as you've :
5 agreed to give testimony about today? :
6 A. As to how -- the opportunity for exposure to :
7 asbestos, how it would have taken place and to what E
8 products and the working conditions one would expect. i
3 Q. Okay. L
10 With regard to thermal insulation, to the best of :
1. your knowledge, what were the dates when most :
12 manufacturers started to remove asbestos from the
13 product?
14 A. Well, starting -- depending on the |
15 manufacturer, but to my knowledge it started as early as E
16 1968. And by the end of '72, all of them have had :
17 completed their task.
18 Q. Okay. |
19 Have you received any repair histories from any of :
20 the locations discussed in the Exhibit A where thermal |
21 insulation was used or seen or worked with?
22 A. No. :
23 Q. Okay. :
24 So it would be correct to say you don't have any I
25 repair histories for Tosco Oil in Avon, California? E
|

= a Serer

HUTCHINGS COURT REPORTERS, LLC - GLOBAL LEGAL SERVICES

800-697-3210CHARLES AY

Page 11

JOYCE JUELCH vs. ASBESTOS DEFENDANTS. March 24, 2010
L Q. But, again, would that be contingent upon type
2 of valve, type of use and repair history?
3 A. Repair history would be the predicating -- the
4 type of valve would not have anything to do with it or
5 the use of the valve would not have anything, but the
6 repair history would definitely play a part.
7 Q. Right.
8 And for the various locations where insulation is
9 discussed in this Exhibit A, you have not received any
10 repair histories for any of those facilities; correct?
11 ~~ A. That is correct.
12 Q. And have you worked at any of those facilities?
13 A. No, I have not worked at any of the facilities
14 that were mentioned there, as I recall.
15 Q. Okay.
16 Would you expect in the years between '82 and '84
17 that any new material purporting to be thermal
18 insulation would be asbestos free?
19 A. Any new materials at that time, yes, I would
20 expect that to be asbestos free.
al Q. Okay.
22 Can you -- Do you have any opinion as to how often
23 in a typical refinery such as Shell Oil or Tosco there
24 would be large shutdowns and major repairs?
25 A. Well, again, shutdowns --

SRT STE TE re eee TCT POI

HUTCHINGS COURT REPORTERS, LLC - GLOBAL LEGAL SERVICES.
800-697-3210JOYCE JUELCH vs. ASBESTOS DEFENDANTS March 24, 2010 CHARLES AY
Page 19

1 Q@. You have no knowledge of whether or not the
2 pipe insulation that she actually removed contained f
oO asbestos other than what's alleged here; correct?
4 A. That is also correct. :
5 Q. All right. :
6 Is there anything else you think you might like to
7 see with regard to this case so that you can testify at E
8 trial? |
9 A. Well, I mean, nothing that I can think of. I
10 Well, because I don't know that they're available, I
a1 would love to see -- And, again, I am -- Let me back up |
12 and make it clear. i
13 tt is my understanding I'm not being used as
14 product ID. I have no idea as to whose product. I'm
15 not being offered as an employer ID as to who this :
16 person worked for, I have no idea. However, because
17 this person did work for a company and this company was
18 a company that worked in an area where
19 asbestos-containing products were likely to be found, :
20 there should be -- given the time period 1983, '84, L
21 there should be documentation as to medical
22 surveillance, respiratory fit program, all of those i
23 things should be documented as part of that person's :
24 record and they would be listed under their Social iL
25 Security number.

HUTCHINGS COURT REPORTERS, LLC - GLOBAL LEGAL SERVICES
800-697-3210in a00001
1

2
3
4

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF ALAMEDA
~000-~

5 JAMES ELLSWORTH and GLORIA )
ELLSWORTH, )
6

7
8

)
Plaintiffs, ) >
va. ) No. RG-08 405462

}
AC AND S, INC,, etal, )
9

)
Defendants, )

20
21
22
23

25

Deposition of
CHARLES AY
March 26, 2009

Reported by:
James Matthews, CSR 7916

TOOKER & ANTZ
COURT REPORTING & VIDEO SERVICES
350 SANSOME STREET, SUITE 700
SAN FRANCISCO, CALIFORNIA 94104
(415) 392-0650

Ellsworth, J - Ay, C 3/26/09

Page 100178
1 A. No, ma'am, [have aot.

2 a Okay, that's all 1 have, thank you.
3 FURTHER EXAMINATION BY MR. O'BRIEN

4 9 i: O.

9 MR. O'BRIEN: Thank you, that's all,

10 MR. EPSTEIN: I just have a very few here.

WE FURTHER EXAMINATION BY MR. EPSTEIN
12 MR. EPSTEIN: Did you review any testimony or
3 information conceming Mr. Ellsworth doing home remodeling
14 or ~ around others doing home remodeling that is suggestive
is of potential exposure to asbestos?

1 A, No, I don't recall reading that, sir.

7 Q. And the work that you did and mentioned concerning
8 reading the newspaper of ship — listing ships that came into
19 Long Beach Naval Shipyard?

200 A. Um-hum.

2a @ That was many years ago that you did that work,

22 right?

2300 AL Fm going to say, hell, that had to he five, six

24 years ago or more. ‘Yeah, that was a long time ago. But the
25 good part is it’s all historical work, so therefore its

" Eltsworth, J- Ay, C3/26/09

Page 17800183

1 CHARLES AY

oo Law Offices of Harowitz & Tigerman
2 450 Sansome Street, 3rd Floor

San Francisco, California 94111
3 Attn: Ronald K. Herron, Bsq.
4
$
6 RE: Ellsworth v. AC and S et al,
ee ~ ~ 7 -
8 Dear Mr. Ay:
9
19 Your deposition taken in the above-entitled matter has been
U1 transcribed, This deposition will be available at our
12 offices for reading and signing by you for a period of thirty
3 (30) days from the date of this letter, after which time the
“ original of your deposition will be sealod and seat to the
5 office which noticed the deposition, in accordance with
16 Section 2025.520(b) of the California Code of Civil
17 Procedure.
18
19 Sincerely,
20
21 Tooker & Antz
az
23 ce: All Counsel
24

25

Ellsworth, J - Ay, C 3/26/09

Page 183Westlaw

Page f

438 Cal.App.4th 96, 44 Cal. Rptr.3d 229, Prod. Liab. Rep. (CCH) P 17,414, 06 Cal. Daily Op. Serv. 2667, 2006 Daily

Joumal D.A.R. 3817
(Cite as: 138 CalApp.4ih 96, 41 Cal Rptr.3d 229)

e
Count of Appeal, First District, Division 2, California.
Paul ANDREWS et al., Plaintiffs and Appellants,

vy.
FOSTER WHEELER LLC, Defendant and Respon-
dent. .
No, A108911.

March 30, 2006.

Background: Husband and wife fited products liabil-
ity action against an equipment manufacturer for al-
legedly causing the asbestos-related discase suffered
by husband as a result of exposure to asbestos during
his years of employment. The San Francisco Superior
Court, No. 424591, Honorable James L. Warren, J,
entered summary judgment for defendant, Husband
and wife appealed.

Holdings: The Court of Appeal, Lambden, J., held
that:

{1 defendant met its initial burden by showing that
plaintiffs’ answers to interrogatories did not raise
wiable issue as to causation, and

{2) declaration by plaintiff's expert did not establish
causation.

Affirmed.
West Headnotes
LL] Appeal and Error 30 C=395(2)

30 Appeal and Error
30XV1 Review
JOXVICF) Trial De Novo
30k892 Trial De Novo
30K895 Scope of Inquiry
30K895(2) k. Effect of findings be-
low. Mast Cited Cases
In performing de novo review on summary judgment,
Court of Appeal must view the evidence in a light
favorable to the losing party, liberally, construing his
evidentiary submission while strictly scrutinizing
other party's own showing, and sesolving any eviden-
tiary doubts or ambiguities in iosing party's favor.

12] Judgment 228 €=7185(6)

228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185 Evidence in General
228k185(6) k. Existence or non-

existence of fact issue. Most Cited Cases
Judgment 228 186
228 Judgment

228¥ On Motion or Summary Proceeding
228k [82 Motion or Other Application
228k186§ k. Hearing and determination.
Most Cited Cases
A motion for summary judgment must be granted if
all of the papers submitted show there is no triable
issue as to any material fact and the moving party is
entitled to a judgment as a matter of law; in determin-
ing whether the papers show there is no triable issue
as to any material fact the court shall consider all of
the evidence set forth in the papers, and all inferences
reasonably deducible from the evidence,

13] Judgment 228 > 185(6)

228 Judgment
228V On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185 Evidence in General
228k185(6) k. Existence or non-
existence of fact issue. Most Cited Cases
A defendant bas met its summary judgment burden of
showing a cause of action has no merit if it has
shown that one or more elements of the cause of ac-
tion cannot be established, or that there is a complete
defense to that cause of action,

14] Judgment 228 €185(2)

228 Judgment
228V On Motion or Summary Proceeding
228k 182 Motion or Other Application
228k 185 Evidence in General
228k 185(2) k. Presumptions and burden

‘© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 2

138 Cal.App.4th 96, 41 Cal.Rpir.3d 229, Prod.Liab.Rep. (CCH) P 17,414, 06 Cal. Daily Op. Serv. 2667, 2006 Daily

Journal D.A.R, 3817
{Cite as: 138 Cal App.4th 96, 41 Cal. Rptr3d 229)

of proof. Most Cited Cases

Once defendant has met its initial summary judgment
burden, the burden shifts to the plaintiff to show a
triable issue of one or more material facts exists as to
that cause of action or a defense thereto, and may not
rely upon the mere allegations or denials of its plead-
ings to show a triable issue of material fact exists but,
instead, must set forth the specific facts showing that
a table issue of material fact exists.

15] Judgment 228 €>185(2)

228 Judgment
228¥ On Motion or Summary Proceeding
228k182 Motion or Other Application
228K185 Evidence in General
228k 185(2) k. Presumptions and burden
of proof. Most Cited Cases
Summary judgment Jaw requires a defendant moving
for summary judgment to present evidence, and not
simply point out that the plaintiff does not possess,
and cannot reasonably obtain, needed evidence.

16] Judgment 228 © 185(5)

228 Judgment
228¥ On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185 Evidence in General
228k185(5) k. Weight and sufficiency.
Most Cited Cases
‘The party moving for summary judgment bears an
initial burden of production to make a prima facie
Showing of the nonexistence of any triable issue of
material fact; if he carries his burden of production,
he causes a shift, and the opposing party is then sub-
jected to a burden of production of his own to make a
prima facie showing of the existence of a triable issue
of material fact.

17} Judgment 228 €=185(4)

228 Judgment
228 On Motion or Summary Proceeding
2284182 Motion or Other Apptication
228k185 Evidence in General
228k135(4) k. Documentary evidence
or official record. Most Cited Cases

Judgment 228 €125(5)

228 Judgment
228V On Motion or Summary Proceeding,

2284182 Motion or Other Application
228k 185 Evidence in General

228k185(5) k. Weight and sufficiency.
Most Cited Cases
Circumstantial evidence supporting a defendant's
summary judgment motion can consist of factually
devoid discovery responses from which an absence of
evidence can be inferred, but the burden should not
shift without stringent review of the direct, circum
stantial, and inferential evidence.

18] Judgment 228 €=> 185(6)

228 Judgment
228¥ On Motion or Summary Proceeding
228k 182 Motion or Other Application
228185 Evidence in General
228k185(6) k. Existence or non-
it Ss

existence of fact issue. Most Cited Cases

There is a triable issue of materiat fact precluding
summary judgment if, and only if, the evidence
would allow a reasonable trier of fact to find the un-
derlying fact in favor of the party Opposing the mo-
tion in accordance with the applicable standard of
proof.

13] Produets Liability 3134 ©7147

313A Products Liability
ZI3AH Elements and Concepts
2IZAKI46 Proximate Cause

3IBAKI47 k, In general, Most Cited Cases
(Formerly 3) 3AK62)

Products Liability 313A 204

313A Products Liability
SLAIN Particular Products

313AK201 k. Asbestos, Most Cited Cases
(Formerly 313Ak83, 313Ak62)

Products Liability 3134 €=>390

AIBA Products Liability
BIBALV Actions
3I3AIVIC) Evidence
JBAIV(CM Weight and Sufficiency of

‘© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.Page 3

138 Cal App.4th 96, 41 Cal.Rptr.3d 229, Prod.Liab.Rep. (CCH) P 17,414, 06 Cal. Daily Op. Serv, 2667, 2006 Daily

Journal DAR. 3817
(Cite as: 138 Cal.App.4tb 96, 41 Cal.Rptr.3d 229)

Evidence

313Ak389 Proximate Cause
313AK390 k. In general. Most Cited
Cases
(Formerly 313Ak83)

‘To ultimately prevail in their underlying claim, ptain-
tiffs alleging asbestos injury would need to establish
that the exposure to a product attributable to defen-
dant was to a reasonable medical probability a sub-
stantial factor in contributing to any asbestos-related
disease suffered by plaintiff:

118] Products Liability 313A ©7147

BIBA Products Liability
333A) Elements and Concepts
313AK146 Proximate Cause

AIBAK 147 k. tn general. Most Cited Cases
(Formerly 313Ak62)

Products Liability 3134 ©7201

2A Products Liability
313 A]H Particular Products

3IZAK201 k. Asbestos. Most Cited Cases
{Formerly 313AK83, 313Ak62)

Products Liability 313A <>"390

BBA Products Liability
BI3AIV Actions
RIZAIV(C)} Evidence
RIBAIV(C)4 Weight and Sufficiency of

Evidence
313AK389 Proximate Cause
313AK390 k. In general. Most Cited
Cases

(onmerty 313Ak83)

Relevant considerations in establishing that the expo-
Sure to an asbestos product attributable to defendant
‘was lo a reasonable medical probability a substantial
factor in contributing to any asbestos-related disease
suffered by plaintiff include the frequency of expo-
sure, regularity of exposure, and proximity of the
asbestos product to plaintiff, although they are not
determinative in every case; additional factors that
may also be significant are the type of asbestos prod-
uct 10 which plaintiff was exposed, the type of injury
suffered, and other possible sources of plaintiff's in-
jury

LLL Products Liability 3134 ©? 147

BBA Products Liability
ZAI Elements and Concepts
SLZAKH46 Proximate Cause
313AK147 k. In general, Most Cited Cases
(Formerly 313Ak62)

Products Liability 3134 €>201

IBA Products Liability
ALIA Particular Products

3IBAK201 k, Asbestos. Most Cited Cases
(Formerly 313Ak83, 313AK62)

Products Liability 3134 €>390

AIBA Products Liability
3E3AIV Actions
BIZAEV(C) Evidence
BLIAIV(CM Weight and Sufficiency of

3L3AK389 Proximate Cause
SIBAK390 k. In general. Most Cited
Cases

{Formerly 313Ak83)

The substantial factor standard for establishing that
the exposure to a product attributable to defendant
Was to a reasonable medical probability a substantial
factor in contributing to any asbestos-related discase
suffered by plaintiff is a relatively broad one, requir-
ing only that the contribution of the individual cause
be more than negligible or theoretical.

Evidence

U2] Judgment 228 €>185(4)

228 Judgment
228V On Motion or Summary Proceeding
228K182 Motion or Other Application
228k185 Evidence in General
228k 185(4) k. Documentary evidence
or official record. Most Cited Cases

Sudgment 228 €—185.3(215
228 Judgment

228¥ On Motion or Summary Proceeding.
228Kk182 Motion or Other Application

© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works,Page 4

138 Cal App.sth 96, 41 Cal. Rptr.3d 229, Prod.Liab.Rep. (CCH) P 17,414, 06 Cal. Daily Op. Serv. 2667, 2006 Daily

Journal D.A.R. 3817
{Cite as: 138 Cal. App.4th 96, 41 Cal Rptr.3d 229)

228K185.3 Evidence and Affidavits in Par-

Ucular Cases
228k185.3(21) k. Torts. Most Cited
Cases

Equipment manufacturer met its initial borden on
summary judgment of producing evidence sufficient
to make a prima facie showing that plaintiff could not
establish that exposure to manufacturer's products
caused plaintiff's asbestos injuries, where manufac-
turer propounded a series of special interrogatories
which calted for all facts regarding plaintiff's £Xpo-
Sure to asbestos from its products, and plaintiff's an-
swers made clear that he did not have specific evi-
dence of such an exposure; this was prima facie evi-
dence that plaintiff did not possess, and could not
reasonably obtain, needed evidence to support the
claim, and burden of production shifted to plaintiff to
establish a triable issue of fact regarding causation.
See 6 Witkin, Cai. Procedure (4th ed. (1997) Prow
ceedings Without Trial, § 216; Weil & Brown, Cal.
Practice Guide; Civil Procedure Before Trial (The
Ruster Group 2005) § 10:241 (CACIVP Ch. 10-E),
13) Judgment 228 © 185(4)

228 Judgment
228¥ On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185 Evidence in General
k. Documentary evidence

228k 185(4)
or official record. Most Cited Cases
Judgment 228 €7185.3(21)

228 Judgment
228Y On Motion or Summary Proceeding
228k 182 Motion or Other Application
228k 185.3 Evidence and Affidavits in Par-

Ucular Cases
228k185.3(21) k. Torts. Most Cited
Cases

4f plaintiffs resisting a motion for summary judgment
in asbestos case respond to comprehensive interroga-
tories seeking all known facts conceming defendant's
responsibility for causation with boilerplate answers
that restate their allegations, or simply provide laun-
dry tists of people and/or documents, the burden of
production will almost certainly be shifted te them
once defendant moves for suramary judgment and
properly presents plaintiff's factually devoid discov-
ery responses

U4} Judgment 228 €185.3¢21)

228 Judgment
228 On Motion or Summary Proceeding
228k 182 Motion or Other Application
228k 185.3 Evidence and Affidavits in Par-
ticular Cases
228K185.3(21) k. Torts. Most Cited
Cases

The mere “possibility” of exposure to asbestos from a
defendant's product does not create a triable issue of
fact on defendant's motion for summary. judgment.

LIS} Judgment 228 >185,1(4)

228 Judgment
228¥ On Motion or Summary Proceeding
228k182 Motion or Other Application
228k185.} Affidavits, Form, Requisites and
Execution of
228k 185.1(4) k. Matters of fact or con-
clusions. Most Cited Cases

Plaintiffs cannot manufacture a triable issue of fact
on a defendant's motion for summary judgment in an
asbestos case through use of an expert opinion with
self-serving conclusions devoid of any basis, expla-
nation, or reasoning; an expert's opinion rendered
without a reasoned explanation of why the underlying.
facts lead to the ultimate conclusion has no eviden-
tary value because an expert opinion is warth no
tore than the reasons and facts on which it is based.

LG} Judgment 228 © 185, 1(4)

228 Judgment
228V On Motion or Summary Proceeding
228k [82 Motion or Other Application
228k185.1 Affidavits. Form, Requisites and
Exeeution of
228k}85.1(4) k. Matters of fact or con-

clusions. Most Cit S
Judgment 228 €7485.3(21)
228 Judgment

228V On Motion or Summary Proceeding
228k 182 Motion ot Other Application
228k185.3 Evidence and Affidavits in Par-

ticular Cases
228k 185.3(21) k. Torts. Most Cited

© 2010 Thomson Reuters. No Claim to Orig. US Gov. WorksPage S

138 Cal App.4th 96, 41 Cal.Rptr.3d 229, Prod.Liab.Rep. (CCH) P 17,414, 06 Cal. Daily Op. Serv. 2667, 2006 Daily

Journal D.A.R. 3817
(Cite as: 138 Cal. App.4th 96, 41 CaLRptr.36 229)

Yn product liability action for injury from exposure to
asbestos against equipment manufacturer, plaintiff's
opposition to defendant's motion for summary judg-
ment was insufficient to raise a triable issue of fact;
expert's declaration purporting to show plaintiff had
been exposed 10 asbestos fibers that had been re-
leased from defendant's condensers during ship over-
hauls and/or modemizations, and tater “re-cntrained”
into the ship's air almost two decades before plaintiff
ever came onboard, lacked a sufficient factual basis,
and offered virtually no explanation or reasoning
beyond the most general of statements about expert's
work and research, making it impossible to determine
how expert reached his conclusions.

{17} Judgment 228 €=185(5)

228 Judgment
228V On Motion or Summary Proceeding
228k 182 Motion or Other Application
228k185 Evidence in General
228k185(5) k. Weight and sufficiency.
Most Cited Cases
‘On a summary judgment motion, the court may not
weigh the plaintiffs evidence or inferences against
the defendants as though it were sitting as the tricr of
fact.
**231 Brayton & Purcell, LLP, Allan R. Brayton,
Gilbert L. Purcell, Lloyd F. LeRoy, Novate, Attor-

neys for Plaintiffs and Appellants,

Carroll, Burdick & McDonough LLP, James_G.
Seadden, David M. Rice, Lee G. Sullivan, Jackson &
Wallace, julie Torres, San Francisco, Attorneys for
Defendant & Respondent.

LAMBDEN, J.

“99 Plaintiffs Paul and Eileen Andrews seek reversal
of the trial court's grant of summary judgment in fa-
vor of defendant Foster Wheeler LLC (Foster
Wheeler}. We affirm the wial court’s judgment be-
cause plaintiffs have not established a triable issue of
fact regarding causation.

**232BACKGROUND

In September 2003, plaintiffs filed products Hiability
claims in superior court in San Francisco against

dozens of manufactures, suppliers, and contractors
for allegedly causing the asbestos-related disease
suffered by Paul Andrews (Andrews), then 70 years
old, as a result of exposure to asbestos during his
years of employment. Among other things, the com-
plaint set forth a history of Andrews's work as a la-
borer, deckhand, and gunner’s mate for over 20 years
at multiple naval facilities and on naval vessels, in-
cluding the USS Brinkley Bass (Brinkley Bass}. On
October 14, 2004, plaintiffs filed an amendment to
their complaint which identified Poster Wheeler as
the entity sued under the fictitious name “DOE 1.”

‘The trial court granted plaintiffs’ motion below for
trial preference and scheduled a tial date for ap-
proximately nine months after the filing of the origi-
fal complaint. Foster Wheeler obtained three rela-
tively short tial continuances, and then moved for
summary judgment.

In support of summary judgment, Foster Wheeler
contended, Sased on two undisputed facts, that plain-
ffs had no evidence that Andrews was exposed to
asbestos from any Foster Wheeler equipment. Foster
Wheeler pointed out that Andrews had admitted in
deposition that he had no knowledge of Foster
Wheeler, of having worked with or in the presence of
anyone working with Foster Wheeler products, or of
ever being exposed to asbestos as a result of any ac-
tion by or interaction with Foster Wheeler. Foster
Wheeler also contended as an undisputed fact that
plaintiffs did not identify any facts supporting their
claim in their answers to Foster Wheeler's special
interrogatories, which interrogatories sought all of
plaintiffs’ knowledge about Andrews’s exposure to
asbestos from Foster Wheeler products. We provide
the details of plaintiffs’ responses in the discussion,
Post.

In their opposition to Foster Wheeler's summary
judgment motion, plaintiffs relied on a handfal of
facts about the Brinkley Bass and two expert declara-
tions, from Charles Ay and Kenneth Cohen, which
we also detail further in the discussion, Plaintiffs
contended that Andrews, as a result of visits to the
Brinkley Bass boiler room after his arrival onboard in
1966, had *100 been exposed to asbestos fibers pre-
viously released into the air from asbestos-containing
gaskets in Foster Wheeler condensers and then “re-
entrained” into the air,

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Foster Wheeler argued in its summary judgment mo-
tion reply that plaintifis' “re-enirainment” theory was
speculative as a matter of law; based on inadmissible
evidence contained in Ay and Cohen's expert declara-
tions, which inadmissibility Foster Wheeler chal-
lenged with expert declarations of its own; and failed
to establish causation because the expert opinions
lacked any seasoned explanation or factual basis.

The trial court granted summary judgment, finding
that Foster Wheeler had met its initial burden of
demonstrating that plaintiffs were not in possession
of any evidence to support their claim, and that plain-
tiffs had failed to meet their burden of presenting
admissible evidence that created a triable issue of
fact. At hearing, the court stated: “The argument that
given the unusual nature of asbestos fibers, some
fibers from the original gasketing must necessarily
have remained in the boiler room over the course of
all of these overhauls, as a result of which Mr, An-
drews must have been exposed to fibers that are 20
and 25 years old that have been sitting there and sort
of lurking in **233 the machinery is, in this court's
view, unacceptably speculative.”

This timely appeal followed.
DISCUSSION

Plaintiffs argue that the trial court erred by failing to
find that Foster Wheeler did not meet its initial bur-
den of production of evidence in suppor of its sum-
mary judgment motion, and by improperly weighing
the evidence each side submitted via expert declara-
tions in the course of concluding that plaintiffs! ex-
Pert evidence was too speculative to support their
claim. Both arguments lack merit.

1. Applicable Legal Standards

{1] The trial court's summary judgment rulings are

subject to de novo review. (Scheiding v. Dinwiddie
Construction Co, (1999) 69 Cal.App.4th 64, 69, 81
Cal.Rptr.2d 360(Scheiding }.} “In performing our de
nove review, we must view the evidence in a light
favorable to plaintiff as the losing party {citation},
liberally, construing {his} evidentiary submission
white strictly scrutinizing [Foster Wheeler's] own
showing, and resolving any evidentiary doubts or
ambiguities in plaintiffs favor.” (Saelzler_y. Ad:
vanced Group 400 (2001) 25 Cal.4th 763, 768-769.

107 Cal Rptr.2d 617, 23 P.3d 1143.)

ZIBM4 EOL “A motion for summary judgment
must be granted if all of the papers submitted show
“there is no triable issue as to any material fact and ...
the moving party is entitled to a judgment as a matier
of law. In determining whether the papers show ...
there is no triable issue as to any material fact the
court shall consider all of the evidence set forth in the
papers, ... and all inferences reasonably deducible
from the evidence ....” (§ 437, subd. (¢).) A defen-
dant has met its burden of showing a cause of action
has no merit if it has shown that one or more ele-
ments of the cause of action ... cannot be established,
or that there is a complete defense to that cause of
action. Once the defendant ... has met that burden, the
burden shifts to the plaintiff ... to show ... a triable
issue of one or more material facts exists as to that
cause of action or a defense thereto. The plaintiff ...
may not rely upon the mere allegations or denials of
its pleadings to show ... a triable issue of material fact
exists but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists...’
Ud, subd. (02); ™ [citations}.)* ( Scheiding, su-
bra, 69 Cal. App Ath at p. 69, 81 Cal. Rptr 2d 360.)

ENL Code of Civil Procedure section 437¢,
subdivision (0) was redesignated section
437¢, subdivision (p) after Seheiding.

SH6I[78] As our Supreme Court has noted,
“{s]ummary judgment law in this state, however,
continues to require a defendant moving for summary
Judgment to present evidence, and not simply point
out that the plaintiff does not possess, and cannot
reasonably obtain, needed evidence.” ¢ aAguilar_y.
Atlantic Richfield Co, (2001) 25 Cal.4th 826, 854,
107 Cal Rpty 2d 841, 24 P.3d 493 ( guitar ); accord,
Saelz] Advanced Group 400, su; 25 Cal 4th at
B_768, 107 Cal Rptr.2d 617, 23 P3d 1143 [burden
shifts to the opposing party “upon a ‘showing’ that
one or more elements of the cause of action cannot be
established”].} “There is a triable issue of material
fact if, and only if, the evidence would allow a rea-
sonable trier of fact to find the underlying fact in fa-
vor of the party opposing the motion in accordance
with the applicable standard of proof.” ( Aguii
850, 107 Cal. Rptww.2d $4), 24 P.3d 493, fn. omitted )
Thus, “the party "*234 moving for summary judg-
ment bears an initial burden of production to make a
prima facie showing of the nonexistence of any tri-

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able issue of material fact; if 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.” (/bid.) Circumstantial
evidence supporting a defendant's summary judgment
motion “can consist of ‘factually devoid" discovery
responses from which an absence of evidence can be
inferred,” but “the burden should not shift without
stringent review of the direct, circumstantial and in-
ferential evidence.” ( Scheiding supra, _69
Cal. App.4th at p. 83, 81 Cal Rpw.2d 360.)

EN2. We note that “stringent” is defined as
“imposing rigorous standards of perform-
ance; severe.” (American Heritage Dict. (4th
College ed.2000) p. 1716.) In other words, a
court's review must consider all aspects of
the record with the strictest degree of scru-
tiny.

(9108) "192 To ultimately prevail in their ander-
lying claim, plaintiffs would need to establish that
Andrews's exposure to a praduct attributable to Fos-
ter Wheeler was to a reasonable medical probability a
substantial factor in contributing to any asbestos.
telated disease suffered by him, pursuant to the stan-
dard of proof articulated in Rutherford v. Owens:
Hlingis, ine. (997) 16 Calath 953, 974-9977, 67
CulRotr2d 16, 941 P2d 1203. (See also
incaweaver _v. sufation: 1995) 3
CalApp.4th 1409, 37 Cal Rpt. 2d 902 [discussing the
substantial factor test with regard to claims involving,
asbestosis].) Relevant considerations include the
“[flrequency of exposure, regularity of exposure, and
proximity of the asbestos product to plaintiff .. al-
though these considerations should not be determina-
tive in every case. {Citation.] Additional factors may
also be significant in individual cases, such as the
type of asbestos product to which plaintiff was ex-
posed, the type of injury suffered by the plaintiff, and
other possible sources of plaintiff's injury.”
eeaver v Plt lation Co, 51 3.

Cal.App.4th at p. 1416, 37 Cal._Rptr.2d_ 902.) "The
substantial factor standard is a relatively broad one,
requiring only that the contribution of the individual
caust be more than negligible or theoretical.”
(Rutherford v. ems iin supra, 16 Cal

Alp. 978, 67 Cal. Rptr.2d 16, 941 P 2d 1203.)

Vi. Foster Wheeler Met Its Initial Burden of Pro-

duction

We first examine plaintiffs’ contention that Foster
Wheeler, as the defendant below, did not meet its
initial burden of producing evidence sufficient to
make a prima facie showing that plaintiffs cannot
establish causation,

We pick up where we left off in Seheiding supra, 69

At Si CabRy 368, to analyze
whether Foster Wheeler met its initial burden of pro~
duction. In Scheiding, we discussed the quantum of
evidence a defendant must show when moving for
summary judgment in order to shift the berden of
Production to the plaintiff. Scheiding and his wife
brought an action against hundreds of defendants
following his diagnosis with asbestosis and asbestos-
related pleural disease, alleging he had been infured
from asbesios exposure during his work as a laborer
and clectrician. (dat p. 67, 81 Cal Rptr2d 360.)
Dinwiddie, allegedly fiable as a general contractor at
various jobsites during Scheiding’s career, moved for
summary judgment for lack of causation, and offered
as support for its motion Scheiding's failure in depo-
sition to identify any jobsite where Dinwiddie was a
Beneral contractor. (/bid.) It was undisputed that
**238 neither Dinwiddie nor any other defendant
every asked Scheiding to identify any jobsite where
Dinwiddie had been present. (/5/d. Plaintiffs, rather
than submit any evidence of causation, claimed that
Dinwiddie had not carried its Statutory burden of
“showing” thai the efement of causation could not be
established.

*403 This court agreed with the Scheiding plaintiffs
because no one had asked Scheiding about Dinwid-
die's rote at any of his jobsites. As Aguilar, supra, 25
Cal. 4th 826, 107 Cal.Rptr.2d 841, 24 P.3d 493, and
Saelsler v. Advanced Group 400. supra, 25 Cal.4th
763, 107 Cal. Rptr.2d 617, 23 P3d 1143, later made
clear, a defendant cannot simply “argue” that a plain-
Uff lacks sufficient evidence to establish causation,
the defendant must make an affirmative “showing”
that the plaintiff cannot do so. While we acknowl
edged that circumstantial evidence supporting a de-
fendant’s summary judgment motion “can consist of
‘factually devoid’ discovery responses from which an
absence of evidence can be inferred,” we also noted
“that the burden should not shift without stringent
review of the direct, circumstantial and inferential
evidence.” (Scheiding, supra, 69 Cal App.dth at p.

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$3, $1 Cal.Rptr.2d 360.) We found that “it would be

unreasonable to infer from this record that plaintiffs
can produce no other evidence {0 link Dinwiddie to
[Scheiding’s} illness. This record does not reflect
whether any party ever asked [Scheiding] specifically
whether he had any information placing Dinwiddie at
any of his work sites.... [W]e can infer nothing at all
with respect to questions which were neither asked
hor answered.” (#0, at p. 83, $1 Cal.Rptr 2d 360.) We
held Dinwiddie was not entitled to summary judg-
ment in the absence of “questions aimed specifically
at the presence or absence of Dinwiddie at jobsites....
11 is entirely possible plaintiffs could have supplied
further information concerning Dinwiddie.” {(/d_ at p.
83,81 Cal Rowr.2d 360.)

in Schviding, supra, 69 Cal.App.4th 64, 8)
Cab Rpte.2d 360, we did not consider directly whether
or not any particular response to a comprehensive
discovery request was “factually devoid.” This is our
focus in the present case. Foster Wheeler based its
summary judgment motion on plaintiffs’ minimal
discovery responses, contending both that its discov-
ery, in the form of Andrews’s deposition and special
interrogatories, was comprehensive and that plain-
tiffs’ factually devoid responses indicated that they
could not prove causation. Plaintiffs contend that
their discovery responses provided facts sufficient to
require denial of summary judgment and, moreover,
that these responses pointed to further discovery that
Foster Wheeler should have pursued in order to meet
its initial burden of production. As we discuss below,
we conclude that Foster Wheeler is correct,

A. Andrews's Deposition Testimony

Andrews's deposition testimony made clear that he
had no knowledge himself that he was exposed to one
of Foster Wheeler's asbestos-containing products.
Plaintiffs do not contend otherwise, but simply argue
this testimony was not sufficient to conclude they
could not ultimately obtain evidence necessary to
prevail in their claim. This might be the case, if it
were not for plaintiffs' interrogatory answers.

*104B. Plaintiffs’ Special Interrogatory Answers

{12} Foster Wheeler propounded a series of special
interrogatories which called for all facts regarding
Andrews's exposure to asbestos from Foster
Wheeler's products. Plaintiffs’ answers made clear

that **236 they did not have specific evidence of
such an exposure.

Foster Wheeler's “Special Interrogatory No. 2” asked
plaintiffs to identify “each fact” in support of their
contention that Foster Wheeler was liable to them ag
alleged in their complaint. In response, plaintifis
merely stated that Andrews had “during his working
career” been “exposed to asbestos-containing boilers
manufactured, constructed, assembled, supplied
and/or distributed” by Foster Wheeler “as more fully
described below.” Plaintiffs followed this statement
with a list of a number of ships, including the Brink-
ley Bass, and two school districts, including the “Io-
cation of exposure” and the “exposure dates,” which
appeared to be nothing more than the jobsite foca-
tions and Andrews’s dates of employment. This list
was followed by a one paragraph description of
Plaintiffs’ job duties on these ships and at these
school districts. Despite plaintiffs' initial qualification
that Andrews’s exposure to Foster Wheeler's products
was “as more fully described below,” they did not
refer to any Foster Wheeler products in the remainder
of their response, instead referring generally to An-
drews's exposure and/or knowledge of asbestos-
containing materials at various jobsites. With regard
to the Brinkley Bass, plaintiffs stated:

“Plaintiff ... served aboard the USS BRINKLEY
BASS, which he boarded at |Long Beach Naval Ship-
yard, Long Beach, Catifornia. Plaintiff recalls asbes-
tos-containing pipe covering on the steamlines. Plain-
tiff visited shipmates in the boiler room, Plaintiff
recalls that the boiler was insulated inside and out
with asbestos-containing material.”

‘This answer was insufficient to support a claim, It
contains litle more than general allegations against
Foster Wheeler and does not state specific facts
showing that Andrews was actually exposed to asbes-
tos-containing material from Foster Wheeler's prod-
nets.

Foster Wheeler propounded other special interrogato-
ties in its effort to obtain alt of the facts known
Plaintiffs regarding Andrews's exposure to Foster
Wheeler's products, Plaintiffs provided little, if any,
substantive information in reply.

*105 For example, Foster Wheeler asked plaintiffs to
state the basis for their contention that Foster

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Wheeler was liable to them as alleged in their com-
plaint. Plaintiffs answered by incorporating their an-
‘Swers to special interrogatory No. 2, and by repeating
that during his work at the jobsites listed, Andrews
“was exposed to asbestos-containing FOSTER
WHEELER boilers and/or boiler components con-
structed, assembled, supplied and/or distributed by
defendant FOSTER WHEELER.”

Foster Wheeler asked plaintiffs to identify for each
exposure to an asbestos-containing product manufac-
tured by Foster Wheeler every fact, location, date,
employer, and type of work or activity engaged in,
and how the exposure occurred, In each case, plain-
tiffs simply referred to their answers to special inter-
rogatory No. 2,

Plaintiffs included the names of several people from
the Brinkley Bass in response to an interrogatory
calling for the identification of coworkers and super-
visors during the times of each alleged exposure to
Andrews, and provided a list of depositions in other
Cases in response to an interrogatory ‘calling for the
identification of the depositions of individuals who
had knowledge of relevant facts relating to each ex-
posure. However, Foster Wheeler also asked plain-
ffs to identify cach person having knowledge of
facts and the facts known egarding cach asbestos
exposure. Rather than provide any facts known to
these persons, plaintiffs merely referred to their list of
**237 coworkers and supervisors and their answer to
special interrogatory No. 2.

Foster Wheeler asked plaintiffs to describe the physi-
cal appearance and packaging of cach asbestos.
containing product of Foster Wheeler's to which An-
drews was exposed. Plaintiffs again relied entirely on
their answer to special interrogatory No, 2 without
any further elaboration.

As can be seen by this review, plaintiffs answered
comprehensive imterrogatories by stating in effect
that they had no specific facts supporting their claim
against Foster Wheeler. Furthermore, plaintiffs stated
as part of their answer to interrogatory No. 2 “that
they have no further information Tesponsive” to the
interrogatory, an answer they incorporated into nu-
merous other answers as well,

Plaintiffs contend we should not draw an inference of
completeness from Foster Wheeler's discovery. They

contend Foster Wheeler inaccurately portrayed their
discovery responses, and fault Foster Wheeler for
failing to refer to the clements of plaintiffs’ claim
addressed by Foster Wheeler's special interrogatories,
or to the specific interrogatory answers that showed a
lack of evidence. We find no merit in this contention.
As we have discussed herein, *106 plaintifts' discov-
ery responses were devoid of material facts showing
that Andrews had been exposed to a Foster Wheeler
product. Foster Wheeler was correct to cite to these
interrogatory answers im support of its motion, as
they are prima facie evidence that plaintiffs “[do} not
possess, and cannot reasonably obtain, needed evi-
dence” to support their claim. (4euilar, supra, 25
Cal.4th at p. 854, 107 Cal Rpw.2d 841, 24 P3d 493)

Plaintiffs argue that their interrogatory answers did in
fact present substantive evidence to support their
claim. At oral argument before this court, plaintiffs’
counset placed great emphasis on the list of persons
plaintiffs had identified as having facts regarding
Andrews's exposure to asbestos. Counsel argued that
the list constituted information so substantial that
Foster Wheeler was not entitled to summary judg-
ment, particularly because Foster Wheeler had not
deposed these people and ascertained the information
they “may well have” in support of plaintiffs’ claim.
Plaintiffs also argue that Foster Wheeler did not es-
tablish its discovery was sufficiently thorough be-
cause it did not refer below to plaintiffs’ extensive
listing of depositions (in other cases) and documents
in response to interrogatory No. 17, which called for
all documents relating to alleged asbestos exposures,

Plaintiffs’ arguments make little sense. Plaintiffs" lists
of names, depositions, and documents do not raise
disputed issues of material fact by themselves. This is
particularly the case because plaintiffs did not pro-
vide any facts relating to Andrews’s claimed asbestos
exposore in response to Foster Wheeler's comprehen-
sive interrogatories, instead relying almost entirely on.
its restatement of its general allegations in interroga-
lory No. 2. Either plaintiffs knew some additional
material facts at the time that they responded to the
interrogatories and chose not to disclose these facts in
their interrogatory responses, or plaintiffs had no idea
what additional facts were available, if any, from the
people and documents fisted. Either way, plaintiffs’
arguments go against the reasoning of Scheiding,
supra, 69 Cal. App 4th 63, 81 Cal. Rptr 2d 360.

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U3)Scheiding presumed, as a matter of law, that
plaintiffs’ responses to comprehensive discovery must
fully disclose the evidence known to them at the time
of their responses, Parties have a duty to tespond to
discovery requests “as completely and straightfor-
wardly as possible **238 given the information
available to them.” (Union Bank vy, Superior Court
(1995) 31 Cal App 4th $73, 580, fh. 3, 37 Cal Rois 2d
683.) When defendants conduct comprehensive dis-
covery, plaintiffs cannot play “hide the ball.” More-
Over, it is not reasonable for courts to infer pursuant
ta Code of Civil Procedure section 437¢, subdivision
{c}, that defendants can discover further material
facts from plaintiffs’ lists of people and documents if
the plaintiffs do not disclose any facts known by such
persons or contained in such documents when asked
te do so. In moving for summary judgment, “{t}he
defendant may .. present *107 evidence that the
plaintiff does not possess, and cannot reasonably ob-
lain, needed evidence-as through admissions by the
plaintiff following ext