In yet another example of a Court refusing to allow Plaintiffs to rely on evidence lacking any foundation in an attempt to defeat a defendant’s Motion for Summary Judgment, on March 8, 2018, the California Court of Appeal affirmed a lower court ruling that Plaintiffs’ expert evidence was insufficient for Plaintiffs’ case to proceed in an asbestos case.

In Foglia v. Moore Dry Dock Company, the California First District Court of Appeal affirmed an Alameda Superior Court trial court’s granting of summary judgment in a wrongful death case based on secondary exposure to asbestos, concluding that Plaintiffs failed to produce any admissible evidence that decedent, Ronald Foglia, was exposed to asbestos through his father’s work at Moore Dry Dock (“MDD”). At the trial stage, MDD moved for summary judgment arguing that (1) MDD had no duty to decedent, who was not directly exposed to asbestos, and (2) that there was no evidence that decedent’s father was exposed to asbestos at MDD.

The trial court denied MDD’s contention that it did not owe a duty to decedent, which MDD appealed. During the pendency of the appeal, however, the California Supreme Court concluded that such a duty does exist (Kesner v. Superior Court (2016) 1 Cal.5th 1132). The Supreme Court found that there is a “duty of employers and premises owners to exercise ordinary care in their use of asbestos includes preventing exposure to asbestos carried by the bodies and on clothing of on-site workers. Where it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.” (Id. at 1140.) As such, the Appeal Court in Foglia did not address this issue.

However, the court ruled in favor of MDD on the issue of whether Plaintiffs had provided any admissible evidence that decedent’s father was exposed to asbestos at MDD. In support of their opposition to MDD’s motion for summary judgment, Plaintiffs submitted decedent’s deposition testimony that his father was a lead electrician for the shipyards and he believed that his father worked at MDD, a declaration from decedent’s aunt Amelia Garcia who stated that decedent’s father worked at MDD, a declaration of Plaintiffs’ expert Barry Castleman, and a declaration of Plaintiffs’ expert Barry Horn. MDD argued that the evidence was insufficient and the trial court agreed.

The trial court excluded the testimony of decedent that his father was the lead electrician for MDD, finding that decedent had no personal knowledge to testify regarding his father’s work as decedent was merely five years old at the time of his father’s alleged employment and admitted that he never observed his father working at MDD. Further, the trial court sustained objections to portions of the declaration of Amelia Garcia in which Ms. Garcia stated that her brother worked as an electrician at MDD, holding that the declaration did not disclose any source of knowledge and foundation for the statements. The trial court reiterated that the mere inclusion that “the facts are within the declarant’s personal knowledge” within the body of the declaration does not fulfill the requirement or show that the information is actually within the declarant’s personal knowledge.

The trial court next turned to the submitted expert evidence in the case. In his declaration in support of Plaintiffs’ opposition, expert Barry Castleman opined that it was foreseeable that decedent would have been exposed to asbestos through the work clothes of his father as anelectrician, absent any special procedures taken by the shipyard. Likewise, Dr. Horn opined in his declaration that he was “aware that asbestos-containing materials were used on ships at Moore Dry Dock”, and upon review of decedent’s deposition, opined that decedent’s exposure to fibers brought home from his father’s work at MDD would have increased his risk of developing mesothelioma. The trial court sustained objections to both declarations, holding that the experts had not provided a sufficient foundation for their opinions that decedent was exposed to asbestos.

On appeal, Plaintiffs challenged the court’s exclusion of the expert declarations, arguing that there was ample evidence to assume that decedent’s father was “somewhere in the shipyard”. Plaintiffs further argued that experts are permitted to rely upon facts not personally known to them and that may be hypothetical. The Court of Appeal, however, agreed with the trial court, holding that both declarations were clearly without foundation and assumed that the decedent’s father worked aboard ships or around asbestos-containing insulation. Both assumptions lacked admissible evidence to support them.

Ultimately, the Court affirmed the granting of MDD’s motion for summary judgment finding that there was no evidence of the time, location, or actual circumstances of the alleged exposures.

Foglia does not alter the duties a defendant owes under Kesner to the household members of its employee; however, it does require a plaintiff in a secondary exposure claim to establish an adequate foundation as to the alleged exposures to the worker (including time, location and actual circumstances). In fact, it provides defendants with legal precedent against plaintiff’s overboard and blanket allegations that simply being on a premise where asbestos-containing products have been known to be used is adequate evidence of exposure to a defendant or to a specific product.

CMBG3 Law LLC has represented clients in toxic torts matters, especially with respect to asbestos, for many years. We provide the most current legal advice to our clients by staying on top of developments in science, medicine, and regulations regarding a wide variety of substances and products used by consumers every day. If you have any questions or would like more information about this ruling, please contact Haley Hansen (email her or 415-957-2325).