California Appellate Court Reverses Summary Judgment for Asbestos Defendant: Must Company Logos Be Shown in Deposition?

Ever since Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, defendants in California asbestos cases (unlike most other jurisdictions) have dutifully asked  “client identification” questions of plaintiffs at deposition, specifically counsel have asked whether the deponents recognize their client’s name.

Decedent Mark Ganoe worked as a “utility man” at an industrial plant. Metalclad moved for summary judgment on the following evidence: (1) the plaintiffs’ allegedly boilerplate responses to Metalclad’s “all facts” special interrogatory; (2) a “case report” in which the plaintiffs identified the decedent’s co-worker Richard Ettress as their sole product identification witness against Metalclad; (3) Ettress’ deposition testimony stating that he had never heard of Metalclad; and (4) a declaration from Metalclad’s person most knowledgeable, Don Trueblood, stating that Metalclad had no information or documents to suggest that it had ever performed any work or supplied materials to the plant at which Ganoe worked.

Approximately two months after Metalclad filed its motion, Trueblood was deposed and produced a document showing that Metalclad had once performed insulation work in the same department of the plant in which Ganoe worked.  The plaintiffs served amended discovery responses highlighting Metalclad’s insulation work in Ganoe’s department.  The plaintiffs’ opposition to Metalclad’s summary judgment motion was therefore based on: (1) the plaintiffs’ (unverified) amended responses to written discovery;  (2) Ganoe’s testimony that he had  observed insulation lines in his department repaired and that it was a “dusty process”; (3) a declaration from Ettress that he had witnessed an outside contractor perform the insulation work at the plant; and (4) a declaration from expert Charles Ay that the insulation removed in Ganoe’s presence was more likely than not asbestos-containing due to the application and the time period in which the work took place.

The trial court granted summary judgment because: (1) the document belatedly produced by Metalclad did not show that it performed work in the vicinity of the decedent and failed to provide “specific dates when, and locations within the plant where, the work occurred”; (2) Ettress had testified that he had no information regarding Metalclad; and (3) although Ettress stated that he saw “outside contractors” perform insulation work, he did not identify Metalclad as one of those contractors.

The Second Appellate District disagreed that Metalclad had met its burden of proof and reversed. The court found that the plaintiffs’ amended responses to Metalclad’s interrogatories “contained ‘specific facts’ showing that Metalclad had exposed Ganoe to asbestos … by removing asbestos-containing insulation” in the area where the decedent worked while he was present.

Although Ettress at deposition stated that he had “never heard of” Metalclad, Ganoe distinguished McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, in which the plaintiff had “never heard of” Kaiser Gypsum, but “was able to identify the kinds of materials he worked with, and the brand names of some of the products he had used.” Here, in contrast, there was no evidence that (and presumably no deposition questions asked whether) “Ettress was able to identify other contractors who had performed insulation work” at the plant. (This seems an odd distinction, given that there was only one insulation job in evidence.)

The court opined that the Ganoe case was “more analogous to Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, where the court found that the defendant had not “made out a prima facie case that plaintiffs would be unable to establish that [he] had been exposed to a [defendant] product, by submitting evidence that [the plaintiff] had no recall of the [defendant’s] name.” The Weber court noted that “[i]t cannot be inferred that Weber would have been unable to recognize a [defendant] product had he been shown one, or had he been shown its packaging or its logo.”  Weber was unlike the typical summary judgment motion fact pattern, in that the defendant did not conduct any “special discovery” designed to ascertain what evidence the plaintiffs had beyond the statements of Weber himself.  Ganoe pointed out that “as in Weber, Metalclad did not show Ettress its logo – which Metalclad workers may have displayed when they performed services for clients – and ask Ettress if he recognized it, but merely asked him if he recognized Metalclad’s name. 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.” It might be enough for such an inference in a case that did not have late-revealed Metalclad documents, which themselves are “other means” of evidencing exposure.

Although the Ganoe ruling heavily relies on Weber, the court’s language distinguishing McGonnell may be more informative.  “In McGonnell, the defendant’s product might have contained asbestos, which might have been used somewhere in the building where decedent worked, and the decedent might have cut into that product while generally performing plumbing work sometime during his 24 years of employment there.” In contrast, the Ganoe plaintiffs had evidence that Metalclad performed insulation work on steam piping in the department at the plant where Ganoe worked, while he worked there. Moreover, the plaintiffs’ expert opined that the insulation removed was more likely than not asbestos-containing.

In practice, cross-examining witnesses with the “Scheiding questions” remains of critical importance and will continue to be a tricky endeavor for California asbestos defendants. The Ganoe decision provides practice pointers to defendants on how to follow McGonnell and potentially succeed on summary judgment, namely by providing evidence that the witness was able to identify similarly situated defendants at the same job site even if they have never heard of your client (e.g. other contractors performing work at the same site if you represent a contractor defendant). Unfortunately, the decision also provides a road map to plaintiffs on how to prepare a circumstantial evidence case opposing summary judgment.  Overall, although the Ganoe decision is disappointing from a defense perspective, the case-specific discovery issues addressed in the opinion, such as the late-served documents placing Metalclad at the decedent’s plant, may provide additional fodder for defendants to distinguish the case.

Another California Decision Rejects Application of the Sophisticated User Doctrine

Continuing an unbroken string of disappointing “sophisticated user” appellate decisions, a California appellate court recently decided in Scott v. Ford Motor Co. (A137975, 3/26/14) that the “sophisticated user” defense did not apply to a career service station owner and mechanic.

Five years ago, the California Supreme Court “adopt[ed] the ‘sophisticated user’ doctrine and defense to negate a manufacturer’s duty to warn of a product’s potential danger when the plaintiff has (or should have) advance knowledge of the product’s inherent hazards. The defense is specifically applied to [those] who knew or should have ETT BLOG_mechanicknown of the product’s hazards, and it acts as an exception to manufacturer’s general duty to warn consumers.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th56, 61.) Since Johnson was issued, attempts by various California defendants to utilize the doctrine in asbestos cases have been universally unsuccessful at the appellate level. (E.g. Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th23; Rollin v. Foster Wheeler, LLC (2012) 2012 Cal.App. Unpub. LEXIS 579.)

Patrick Scott was a career service station owner and mechanic diagnosed with mesothelioma. The plaintiffs alleged that resulted from his exposure to asbestos while changing out brakes and clutches supplied by manufacturers including Ford Motor Company. Mr. Scott began working on cars as a teenager before opening his own service station in 1966, eventually owning four stations. He was a member of an automotive trade association and earned multiple certifications in the field. Ford argued that this qualified Mr. Scott as a “sophisticated user” of automotive parts who should be deemed to have been aware of the risks of asbestos exposure from repairing brakes and clutches, barring any liability to Ford. The trial court rejected this argument on Ford’s motion for judgment notwithstanding the verdict (JNOV), and the Court of Appeal affirmed.

The Scott decision found that Ford had “failed to prove the risks of automotive asbestos exposure should have been known by mechanics in the 1960’s and 1970’s.” “[T]here was no evidence that Scott, or others like him, were instructed in the claimed risks as part of their training.” Scott found it difficult to pinpoint “a scientific consensus regarding the dangers of automotive asbestos exposure” from the evidence at trial, given that even a defense expert testified that the conclusion of a major scientific conference in 1969 was that “brake linings are not a problem – or not a hazard.” Scott found that Ford itself did not place warnings about asbestos exposure on cartons of its own products until 1980, more than 14 years after Mr. Scott opened his first service station.

Ford suggested that if Mr. Scott was not a sophisticated user, then Ford itself had no duty to warn about the risks of asbestos exposure from its brakes. The court rejected this argument, both because the legal standards of constructive notice are different for product liability and the sophisticated user defense, and because as a factual matter what was “known or knowable” to Ford, a “large international business directly involved in the manufacture of the product,” is not the same as what was “known or knowable” to a local mechanic such as Mr. Scott. (Ford’s argument was not helped by being raised for the first time at oral argument.)

Takeaways from the Scott decision include:

1. Defendants need to develop a strong record during discovery of either (a) a plaintiff’s individual skills and training that allow the jury to determine his level of sophistication or (b) clear evidence regarding the sophistication of the trade or class of workers at the time of exposure.

2. Even where evidence of “sophisticated user” is not legally sufficient to bar liability completely, it may nevertheless support a finding of contributory negligence. In Scott, the jury found Mr. Scott 19 percent contributorily negligent (almost as big a percentage of liability as attributed to Ford, 22 percent).