Holliday v. Warren Pumps LLC (2008)

Our plain-English summary of Holliday v. Warren Pumps LLC (California Court of Appeal, November 4, 2008).

Ray Holliday was diagnosed with mesothelioma in 2006. He and his wife Shirley sued several companies, including Warren Pumps LLC, for personal injury and loss of consortium. They alleged he was exposed to asbestos while serving as a boiler operator aboard the USS Bremerton from 1953 to 1956, including from the packing and gaskets of a Warren pump in fireroom number one. Warren moved for summary judgment, and the trial court granted it. In his deposition Holliday said he had never worked on a Warren pump and had never heard of the company, and his brother and a shipmate could not connect him to one. The plaintiffs relied on two expert declarations. One said the pump's asbestos parts would have been removed in a 1947 overhaul. The other said the resulting fibers would still have been in the air six years later. The Court of Appeal affirmed. It found both declarations speculative and lacking foundation, following an earlier case that rejected similar testimony. It did not reach Warren's military contractor argument.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: California Court of Appeal, 1st Appellate District, 4th Division
• Decided: November 4, 2008
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: California

Outcome. The Court of Appeal affirmed summary judgment for Warren Pumps LLC, holding that plaintiffs Ray and Shirley Holliday's expert declarations were speculative and raised no triable issue of exposure to a Warren product.

What the court held. An expert declaration built on speculation (that a pump's asbestos packing and gaskets were removed in an overhaul years before the plaintiff's service, and that fibers then resuspended) lacks foundation and cannot create a triable issue of exposure to the defendant's product.

Issues decided: Causation, Expert Testimony, Product Identification.

The people and their exposure

• Ray D. Holliday: mesothelioma

Who	Work	Where	When	Products
Ray D. Holliday	boiler operator (the Navy); military service	USS Bremerton	1953 to 1956	gaskets and packing, Warren auxiliary condenser circulating pump packing and gaskets (Warren Pumps)

The defendants

• Warren Pumps LLC (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rutherford v. Owens-Illinois, Inc. (California Supreme Court, 1997). The California Supreme Court reversed the Court of Appeal's judgment, which had ordered a new trial for Owens-Illinois. It held that the burden-shifting instruction was error but harmless, and that the tobacco company defense issue was controlled by Richards, so the plaintiffs' judgment against Owens-Illinois was not overturned.
• Weber v. John Crane, Inc. (California Court of Appeal, 1st Appellate District, 1st Division, 2006). The Court of Appeal reversed the summary judgment for John Crane, Inc., holding that its evidence did not shift the burden to the Webers to show a triable issue on causation.
• McGonnell v. Kaiser Gypsum Co., Inc. (California Court of Appeal, 1st Appellate District, 4th Division, 2002). The Court of Appeal affirmed summary judgment for Kaiser Gypsum and Kaiser Cement, holding the plaintiffs, the family of James McGonnell, had not shown a triable issue that he was exposed to the defendants' asbestos-containing products.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

RAY D. HOLLIDAY et al. Plaintiffs and Appellants,

v.

WARREN PUMPS LLC, Defendant and Respondent.

A118809

November 4, 2008

Not to be Published

Court of Appeal of California, First Appellate District, Division Four

RIVERA, J.

Ray D. Holliday (individually, Holliday) and Shirley Ruby Holliday (collectively, plaintiffs) appeal from a judgment in favor of Warren Pumps LLC (Warren). They contend the trial court erred in granting summary judgment on the ground the declarations of plaintiffs' experts did not raise a triable issue of fact. We affirm.

I. FACTUAL BACKGROUND

Holliday was diagnosed with mesothelioma in August of 2006. On November 7, 2006, plaintiffs filed a complaint for personal injury and loss of consortium against numerous defendants including Warren, alleging that Holliday developed mesothelioma through his occupational exposure to asbestos. As to Warren, they alleged that Holliday was injured as a result of his exposure to asbestos-containing material manufactured by Warren while he served as a boiler operator aboard the USS Bremerton from 1953 to 1956.

On April 27, 2007, Warren moved for summary judgment alleging that: (1) there was insufficient evidence presented by plaintiffs to support their claims; and (2) it was entitled to immunity from suit as a military contractor. It argued that plaintiffs had produced no evidence identifying exposure to any Warren product, that Holliday testified in his deposition that he was unfamiliar with Warren and had never worked on or around pumps manufactured by Warren, and that his coworkers similarly could not connect Holliday with any Warren products. Warren also alleged that it was entitled to military contractor immunity. In opposition to the motion, plaintiffs alleged that Holliday was exposed to asbestos from the packing and gaskets found on a pump manufactured by Warren that was installed in fireroom number one. They relied on the declaration of John Fening, a retired Navy machinist mate, who averred that he reviewed the National Archive naval records regarding the USS Bremerton's repair and overhaul history, which indicated that there was a Warren auxiliary condenser circulating pump in fireroom number one that contained asbestos and that the asbestos-containing materials would have been removed during the Bremerton's first scheduled overhaul in 1947. They also submitted the declaration of Kenneth Cohen, an industrial hygienist, who opined that the 1947 overhaul on the Bremerton resulted in the release of asbestos fibers in fireroom number one, including asbestos fibers from the Warren pump's packing and gaskets, and that those fibers were still present when Holliday was aboard the ship during 1953 to 1955.

The trial court granted Warren's motion for summary judgment, finding that plaintiffs had failed to present evidence of Holliday's asbestos exposure from a Warren product. The court further ruled that the declarations submitted by plaintiffs lacked foundation and were speculative regarding the statements that Holliday was exposed to asbestos as a result of work performed six years before he was aboard the ship.

II. Discussion

A. Standard of Review

We review a trial court's grant of summary judgment de novo. (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 388-389.) "In performing our de novo review, we must view the evidence in a light favorable to [the] plaintiff as the losing party [citation], liberally, construing [his] evidentiary submission while strictly scrutinizing [the] defendant['s] own showing, and

resolving any evidentiary doubts or ambiguities in [the] plaintiff's favor." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.)

A defendant seeking 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 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." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) California law requires that "a defendant moving for summary judgment. . . present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Id. at p. 854, fn. omitted.) In an asbestos action, in order to prevail, plaintiffs would need to show that Holliday's exposure to a Warren manufactured pump "was to a reasonable medical probability a substantial factor in contributing to any asbestos-related disease suffered by him, pursuant to the standard of proof articulated in Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 974-977 . . . ." (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 102 (Andrews).) "Factors relevant to assessing whether such a medical probability exists include frequency of exposure, regularity of exposure and proximity of the asbestos product to the plaintiff." (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1438.)

1. Deposition Testimony

Holliday's deposition testimony made clear that he had no knowledge that he was exposed to one of Warren's asbestos-containing products. When asked if he had ever done work with or on a pump manufactured by Warren, he admitted he had not. In fact, Holliday admitted he had never even heard of the Warren company.

Likewise, Holliday's brother, Roy, who worked with him on the USS Bremerton for two years, admitted he had no information that Holliday ever worked on or near a Warren pump. John Coker, who also served with Holliday on the Bremerton, said he did not recall seeing Holliday work around or repair any pumps, including any Warren pump, while he was onboard the ship. 2. The Fening Declaration

Fening opined that based on his review of the National Archive naval records, there was a Warren pump present in fireroom number one. Fening also maintained that the Warren pump contained asbestos packing and gaskets, and that it specifically "contained a total of 18 rings of asbestos-containing metallic packing and multiple asbestos gaskets." Fening averred that based on his knowledge of the types of gaskets and packing used on naval pumps and of Navy specifications and documents, the Warren pump installed on the Bremerton contained asbestos.

Fening further opined "that, under normal circumstances, the asbestos-containing packing and gaskets installed by WARREN PUMPS would have been removed during the BREMERTON's first scheduled overhaul in 1947 at Puget Sound." (Italics added.) He opined that the 1947 overhaul would have included the removal of packing and gaskets which would have created visible dust and debris from the packing and gasket material and that, in his experience, some of the debris "would have become airborne from the removal practices and clean-up methods used." (Italics added)

3. The Cohen Declaration

Cohen stated he had "specific knowledge and experience with the levels of asbestos exposure to shipyard workers and workers on board Navy ships during the 1940s, 1950s, 1960s and 1970's, including individuals working in the engine rooms and boiler rooms of Navy ships," and that he had "studied how asbestos is released into the air from these products, and how it behaves in air once released." Cohen asserted he had tested "mothballed" vessels from the fleet in Suisun Bay, which were not in operation and found "airborne asbestos" at levels presenting a significant hazard to individuals on the ship. He asserted that the levels would have been higher on a ship in operation or undergoing maintenance or repair. Cohen further stated that his research indicated that asbestos fibers, once released, will eventually settle, but that minimal energy, such as the air turbulence created by human traffic and the movement of machinery, was sufficient to cause resuspension of settled fibers. Cohen discussed a number of specific environmental tests and studies in support of this concept of periodic resuspension of settled fibers. He stated he had reviewed Roy Holliday's deposition testimony and

Fening's declaration. He concluded that Holliday had been exposed to hazardous and unsafe levels of asbestos fibers and dust from multiple sources, including the Warren pump during the 1947 overhaul.

B. Analysis

Plaintiffs contend that the trial court erred in finding that the declarations of Fening and Cohen were speculative. They argue that the declarations showed that Holliday was exposed to asbestos during the overhaul of the Warren pump's gaskets and packings on the USS Bremerton.

The trial court ruled that the declarations lacked foundation and were based on speculation. We agree with the trial court's ruling.

Andrews, supra, 138 Cal.App.4th at page 113 is instructive. There, the court determined that a similar declaration by Cohen lacked a sufficient factual basis to create a triable issue of fact. The court was specifically troubled with Cohen's "re-entrainment" theory—that the plaintiff may have been exposed to asbestos fibers released into the air of an active naval ship almost two decades before he was aboard the ship because the asbestos fibers earlier released continually contaminate the surrounding air by re-entrainment and circulation throughout the various ship compartments. (Id. at pp. 112-113.) In Andrews, the plaintiff produced no evidence that the defendant's product's gaskets were removed during an overhaul and he admitted in his deposition testimony that he had no knowledge that he was exposed to one of the defendant's asbestos-containing products. (Id. at pp. 103, 111.) The court concluded that the trial court properly granted summary judgment in favor of the defendant because the plaintiff could not prove causation. (Id. at p. 99.) Here, as well, plaintiffs did not produce any evidence that Holliday worked on any pumps manufactured by Warren. Indeed, at his deposition, Holliday admitted that he never did any work on a Warren pump, never saw anyone working on such a pump, and had not previously heard of the company. His brother, Roy, who served on the USS Bremerton for two years with Holliday, also did not have any knowledge that Holliday had worked on a Warren pump. Coker, who also served with Holliday on the Bremerton, said he did not recall seeing Holliday work around or repair any pumps, more specifically any Warren pump, while he was onboard the ship. Moreover, while Fening indicated in his declaration that naval documents showed that a Warren auxiliary condenser circulating pump was installed in fireroom number one, he could only speculate that its packing and gaskets would have been removed during the overhaul in 1947. In addition, the Navy records attached to his declaration did not indicate what work, if any, was performed on the Warren pump during the overhaul. Cohen's declaration, in turn, relied on Fening's assertions that the Warren pump was overhauled in 1947 and contained asbestos in components that were disturbed during its (presumed) overhaul. In his declaration, Cohen concluded that fireroom number one became contaminated with asbestos fibers released from the Warren pump's packing and gaskets during the 1947 overhaul and that these fibers were spread through the ventilation system resulting in significant contamination. Cohen further opined that Holliday was exposed to these asbestos fibers six years later during his 1953 to 1955 service on the Bremerton given the number of fibers released, their indestructibility, and the settling of fibers in the fireroom resulting in their "being lift[ed] back into the air in a continuous cycle of settling and resuspension."

As discussed in Andrews, Cohen's conclusions are speculative and lack a sufficient foundation. His conclusions are based on Fening's speculation that a Warren pump was overhauled in 1947, an assertion lacking a sufficient factual basis. Further, Cohen's theory, that any asbestos fibers released from a Warren pump in 1947 would still be present six years later also lacks any evidentiary support particularly in light of the fact that it is based on the conjecture in Fening's declaration that asbestos fibers from a Warren pump were released in 1947. Moreover, Cohen's "resuspension" theory was rejected in Andrews where the court noted the lack of a basis for Cohen's view particularly due to his reliance on "discovery of detectable levels of respirable asbestos in unidentified tests that he. . . conducted on unidentified ships that had been `mothballed' for an unidentified time under unidentified conditions." (Andrews, supra, 138 Cal.App.4th at pp. 112-113.) Here, as well, Cohen again relies on these unidentified tests to support his conclusion that asbestos fibers would be suspended into the air aboard a ship in operation six years after an overhaul.

"The mere `possibility' of exposure does not create a triable issue of fact." (Andrews, supra, 138 Cal.App.4th at p. 108.) "Plaintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning." (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1106.) Here, Cohen's statements pertaining to Holliday's exposure necessarily rely on the speculative conclusions of Fening's declaration. Together, the declarations create "only `a dwindling stream of probabilities that narrow into conjecture.' " (McGonnell, supra,

at p. 1105.) The trial court was therefore not bound by them. (Id. at p. 1106 [court not bound by expert opinion that is based on conjecture]; see also Andrews, supra, 138 Cal.App.4th at p. 113.)

Plaintiffs failed to show that Holliday was exposed to respirable asbestos from a Warren product. The evidence failed to create a triable issue of fact. Since the trial court properly granted Warren's motion for summary judgment on this ground, we need not address its claim that it was entitled to immunity as a military contractor.

III. DISPOSITION

The judgment is affirmed.

We concur:

RUVOLO, P. J.

REARDON, J.

Sources

• The opinion on Google Scholar
• California asbestos laws
• California asbestos exposure sites