Important Recent Decisions From New York City Asbestos Litigation

As 2014 draws to a close, the New York City asbestos litigation (“NYCAL”) has seen reaffirmation of the recent decision to allow punitive damages claims to go forward, and two summary judgments that show the court is requiring solid, non-speculative evidence of exposure to a defendant’s products.

Punitive Damages

On December 15, 2014, Justice Sherry Klein Heitler denied the NYCAL defendants’ motion to renew and reargue the court’s April 8, 2014 decision to allow punitive damages to be pursued in NYCAL cases.  Prior to the April 8 ruling, defendants and plaintiffs had an agreed-upon Case Management Order (“CMO”) that stayed claims for punitive damages.  In the motion to renew and reargue, defendants asserted that the April 8 ruling created mass confusion among the asbestos judges and counsel, and undermined the parties’ voluntary CMO which was designed to provide a fair, expeditious and inexpensive means to resolve asbestos claims. Defendants also argued that Judge Heitler exceeded her authority because the CMO was a negotiated, agreed-upon compromise of the parties.   Judge Heitler rejected these arguments, ruling that the court has the authority to correct what in its view was “a fundamental inequality in the CMO.”

In rejecting defendants’ arguments, Judge Heitler and relied on the overarching principle that New York public policy recognizes that an asbestos plaintiff has a right to seek punitive damages in appropriate circumstances.  The court noted that punitive damages are not deferred in any other county in the State, and denied there was any confusion among the asbestos judges.  Judge Heitler ruled that each trial judge has the authority and responsibility to determine whether a jury instruction for punitive damages should be permitted.

Justice Heitler also rejected defendants’ equal protection and due process claims.  She noted that asbestos defendants in NYCAL are not treated any differently than in any other county and reiterated that the April 8 ruling made clear that punitive damages are only recoverable if the proof establishes there was ‘such gross, wanton or willful fraud or other morally culpable conduct to a degree sufficient to justify such an award.’  Moreover, neither the April 8 ruling nor the CMO prohibited a defendant from moving to dismiss a punitive damage claim.

Lack of Nexus and Causation

In Falkenmeyer v. A.O. Smith Water Products Co., defendant Cleaver-Brooks moved for summary judgment based on the absence of evidence of exposure.  The court recognized that a plaintiff must demonstrate that there was actual exposure to asbestos fibers released from the defendant’s product.  Plaintiff’s decedent died of lung cancer attributed to an occupational exposure to asbestos.  To prove liability, plaintiff proffered the testimony of decedent’s co-worker, who testified that both he and the decedent worked on boilers and burners and were thereby exposed to asbestos.  The co-worker generally recognized the name of defendant’s product, but also admitted that he didn’t know which particular boilers and burners that he or the decedent worked on. Falkenmeyer granted summary judgment, ruling that the nexus to defendant’s product was speculative and liability could not be reasonably inferred from co-worker testimony.

Similarly, in Casaregola v. 3M Company, defendant Cleaver Brooks moved for summary judgment after two-co-workers of the plaintiff’s decedent failed to demonstrate that the decedent was exposed to asbestos from defendant’s product.  Casaregola was a carpenter and worked on various Navy ships.  One ship, the Mormac Cargo, did use defendant’s evaporator and acid-cleaning pumps.  However, there was no showing that the decedent worked on the Mormac Cargo or that similar ships that decedent actually worked on had the same equipment.  Moreover, even if these ships had the same equipment, there was no evidence of Mr. Casaregola’s actual exposure.  The court rejected a co-worker’s affidavit because it failed to demonstrate Mr. Casaregola’s actual exposure.  The court ruled that “plaintiff cannot show that Mr. Casaregola was exposed to asbestos from the products for which the defendant bears responsibility without resorting to speculation” and granted summary judgment.

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.

Contradictory Testimony No Basis for Denial Of Summary Judgment

All too often, a defendant in a toxic tort case loses a motion for summary judgment because the court determines that imprecise witness testimony creates a triable issue of fact that warrants denial of the motion. Indeed, it is the rule in California that the task of deciphering the meaning of “ambiguous” witness testimony is a role reserved for the jury. Reid v. Google, Inc. (2010) 50 Cal.4th 512, 541, 113 Cal.Rptr. 3d 327, 235 P.3d.988

Thus, quoting from this oft-cited case, plaintiffs routinely argue that “the task of disambiguating ambiguous utterances is for trial, not for summary judgment.” Other California holdings suggest that an inconsistency in witness testimony does not require that the testimony be disregarded in its entirety; rather, it is for the trier of fact to determine what weight the testimony should be given. Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865.

On May 4, 2012, the Bloomberg BNA Toxic Law Reporter reported on the recent  decision in Davis v. Foster Wheeler Energy Corp., Cal. Ct. App., No. B226089, 4/26/12, where the California Court of Appeal for the Second Appellate District drew a sharp distinction between testimony that was “ambiguous” and testimony that was “internally contradictory.”  In affirming summary judgment, the court found that no triable issue of fact was established where the witness testimony was contradictory. Here are the pertinent facts.

Ronald Davis worked at a chemical plant in Torrance, California in the 1960’s. He later developed mesothelioma, and died in 2009. Among others, the plaintiff sued Foster Wheeler, alleging negligence, strict liability, breach of warranty, and loss of consortium. Foster Wheeler moved for summary judgment, arguing that it did not manufacture, sell, or distribute any asbestos-containing product, and that the decedent was not exposed to asbestos dust by any Foster Wheeler product. The trial court granted summary judgment and plaintiffs appealed.

The plaintiffs argued that there was a triable issue concerning whether Davis was exposed to asbestos dust when Foster Wheeler employees, such a decedent, stripped old asbestos-containing insulation from the outside of boilers during maintenance activity. Key to the plaintiffs’ appeal was the deposition of Claude Chabot, a witness who initially claimed that he observed a maintenance worker stripping insulation wearing a hat with “FW” on the brim. However, in a later deposition, Mr. Chabot testified that he had no information whether any Foster Wheeler personnel removed or installed insulation on the boilers at the plant.

Under these circumstances, the trial court decided that “no reasonable jury considering this opposing testimony would conclude that the [Foster Wheeler] workers are the workers who removed the asbestos insulation around the Foster Wheeler boiler.” The appeals court agreed that Mr. Chabot’s internally contradictory testimony did not establish the existence of a triable issue of fact.

I have not examined whether other jurisdictions draw a similar distinction between “ambiguous” and “contradictory” or “internally inconsistent” testimony, but if they do not, perhaps they should. In many toxic tort cases, defense counsel may be confronted with potentially adverse testimony from a witness who is testifying to recollections that may be decades old. (Did the witness see that FW hat at the plant or at a UCLA football game?)

One school of thought is to leave adverse testimony alone. Pursuant to this view, taking an expanded deposition of plaintiff’s witness would only make the “record” worse. The holding in Davis suggests that this view may be shortsighted. The adverse witness who provides an affidavit to plaintiff’s counsel may be doing so out of sympathy for a co-worker who has died or suffers from a serious illness. A witness’s recollection of events is often different when the witness is deposed, possibly on videotape, in a formal deposition setting. It is possible that the witness, who provided the unhelpful affidavit, may be willing to admit in deposition that his recollection of long past events may be faulty or possibly inaccurate.

Eliciting contradictory testimony from a witness may not necessarily mean that the witness is dishonest or hostile. Rather, it reflects the tendency in all of us to want to be helpful. Foster Wheeler’s counsel skillfully developed inconsistencies in the witness’s testimony and thereby obtained dismissal from the case. There is no reason why “inconsistent” or “internally contradictory” testimony from witnesses, perhaps originally adverse, should not be disregarded by trial courts in other jurisdictions besides California.