McPhee v. Ford Motor Company (2006)

Our plain-English summary of McPhee v. Ford Motor Company (Washington Court of Appeals, October 16, 2006).

Marvin McPhee sued Ford Motor Company on behalf of the estate of his wife Elaine, who died of mesothelioma in April 2004. The suit claimed she was exposed to asbestos in Ford brakes. Over their 46-year marriage, Marvin replaced the original brakes on at least two new Ford cars at home. Elaine sat in the car pumping the brake pedal, threw away worn brake pad pieces, swept the work area, and washed his clothes, shaking out dusty ones. The trial court granted summary judgment to Ford, finding no genuine issue of fact on medical causation. The Court of Appeals affirmed. The family's expert, Dr. Brodkin, had testified in deposition that he had no product-specific information and would not offer opinions that Ford products caused her disease. His later declaration said each exposure alone would have been enough to cause her mesothelioma. The court held the declaration contradicted the deposition without explanation and should not be considered. It also held that, even if considered, the declaration was too conclusory to rebut Ford's experts.

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: Washington Court of Appeals, 1st Division
• Decided: October 16, 2006
• Docket: No. 55832-3-I
• Stage: Appeal from summary judgment
• State: Washington

Outcome. The Court of Appeals affirmed summary judgment for Ford Motor Company, rejecting Marvin McPhee's claim over his wife Elaine's fatal mesothelioma because his medical expert's declaration contradicted his deposition and was too conclusory to show causation.

What the court held. A party cannot create a genuine issue of fact with an affidavit that contradicts, without explanation, clear earlier deposition testimony, and a conclusory expert declaration without factual support cannot defeat summary judgment on medical causation.

Issues decided: Causation, Expert Testimony, Take-Home Exposure.

The people and their exposure

• Elaine C. McPhee (family member): mesothelioma; died

Who	Work	Where	When	Products
Elaine C. McPhee	wife of man who did home brake work; sat in car pumping brake pedal, swept up, laundered clothes; dust brought home	family home		brakes, clutches and friction materials, Ford original brakes

The defendants

• Ford Motor Company (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Lockwood v. AC & S, Inc. (Washington Supreme Court, 1987). The Washington Supreme Court affirmed the Court of Appeals and the trial court, leaving in place the $183,372 jury verdict for Albert Lockwood against Raymark Industries.
• Berry v. Crown Cork & Seal Co., Inc. (Washington Court of Appeals, 1st Division, 2000). The Court of Appeals reversed summary judgment for Saberhagen Holdings and remanded for trial, holding the plaintiffs (Berry's estate and widow) raised a genuine issue of fact on exposure to Brower-supplied products.
• Mavroudis v. Pittsburgh-Corning Corp. (Washington Court of Appeals, 1st Division, 1997). The Court of Appeals affirmed the judgment for the Mavroudis plaintiffs against Owens-Corning Fiberglas Corp. and affirmed the trial court's finding that the pretrial settlements were reasonable.

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.

MARVIN McPHEE, as Personal Representative of the Estate of ELAINE C. McPHEE, deceased,

Appellant,

v.

FORD MOTOR COMPANY, Respondent.

No. 55832-3-I

Filed: October 16, 2006

The Court of Appeals of Washington, Division One.

Counsel for Appellant(s), Scott Allen Niebling, Brayton Purcell, 621 Sw Morrison St Ste 950, Portland, OR, 97205-3824. Zachary B Herschensohn, Brayton Purcell, 621 Sw Morrison St Ste 950, Portland, OR, 97205-3824.

David Collins, Brayton Purcell, 222 Rush Landing Road, Novato, CA, 94948-6169.

Counsel for Respondent(s), Jose Edward Gaitan, The Gaitan Group PLLC, 3131 Elliott Ave Ste 700, Seattle, WA, 98121-1047.

Virginia Leeper, The Gaitan Group, 3131 Elliott Ave Ste 700, Seattle, WA, 98121-1047.

Jason Christopher Hawes, The Gaitan Group PLLC, 3131 Elliott Ave Ste 700, Seattle, WA, 98121-1047.

COLEMAN, J.

Marvin McPhee, on behalf of his deceased wife Elaine, sued Ford Motor Company, alleging that Elaine had been exposed to asbestos in Ford car brake products that caused her fatal mesothelioma. The suit was dismissed on summary judgment because the trial court concluded that there was no issue of material fact on the issue of medical causation. Because the declaration in which Marvin's medical expert opined that Elaine's exposures to Ford products caused her mesothelioma contradicted his earlier deposition testimony and thus should not have been considered, and in any event was too conclusory to establish a genuine issue of material fact, we affirm.

FACTS

Elaine McPhee died of mesothelioma in April 2004. She was survived by her husband of 46 years, Marvin McPhee. During their marriage, Marvin performed mechanical work on the family vehicles, including brake work on at least two new Ford cars. Marvin replaced the original Ford brakes, which Ford conceded below contained asbestos, at his home. While Marvin was working on the brakes, Elaine would sit inside the car and pump the brake pedal. After Marvin was finished, she threw away pieces of deteriorated brake pads and swept up the work area. She also laundered Marvin's clothes after he worked on the brakes, shaking out the clothing if they were dusty.

Marvin, on behalf of Elaine, filed suit against, among others, Ford. Marvin's medical expert Dr. Carl Brodkin testified in a deposition that he would not be offering opinions that particular products caused Elaine's mesothelioma: [Ms. Leeper]: Will you be offering any specific opinions at trial regarding the causal relationship between Ms. McPhee's alleged indirect exposure to General Motors or Ford asbestos-containing products and her alleged mesothelioma?

. . . .

[Dr. Brodkin]: I will be testifying regarding indirect exposure to friction products due to brake and other friction material manipulations by Ms. McPhee's husband. In terms of a by product basis, no, I don't anticipate that. Q. You mean not "byproduct," as in one word, but —

A. Exactly. Yes.

Q. Therefore, you cannot say, to a reasonable degree of medical certainty on a more probably than not basis, that inhalation of asbestos fibers from products sold by General Motors or Ford caused Elaine McPhee's alleged mesothelioma, can you?

A. Well —

MR. BRAYTON: Objection. Calls for speculation.

THE WITNESS: I would say, in terms of the research that I have done, of the work and exposure information I have been provided, that certainly manipulation of friction materials is a very important component of Ms. McPhee's indirect exposure.

I have not reviewed how these relate specifically to product information.

Q. My question was: You cannot say, to a reason [sic] degree of medical certainty on a more probably than not basis, that inhalation of fibers from products sold by General Motors caused Ms. McPhee's

mesothelioma, can you?

MR. BRAYTON: Objection. Argumentative. It calls for speculation.

A. I have not researched specific products in this case. My knowledge and what I'm prepared to testify about relates to the known fibers generated from specific activities with brakes, clutches, gaskets, other friction materials.

Again, I have no — no basis for assessing specific product information. I just haven't been given that information.

Q. So that would be the same response as to Ford motor products as well. Correct?

A. Yes.

Ford submitted excerpts from depositions of Marvin's expert Dr. Samuel Hammar in previous cases, wherein Hammar testified that exposures below. 1 fiber/cc years were not substantial factors causing mesothelioma. Ford's expert Dr. Morton Corn testified in a deposition that Marvin's asbestos exposure from all his brake work was comparable to ambient air levels of exposure (.01-.02 fibers/cc years), and that Elaine's exposure was of a magnitude below Marvin's — thus quantifying Elaine's exposure as insufficient to be a substantial factor causing her mesothelioma under Hammar's quantification standard. Ford moved for summary judgment, contending that Marvin could not meet his burden of proof that Ford products were a substantial factor in causing Elaine's mesothelioma.

Marvin attached Brodkin's three-page declaration to his response to the summary judgment motion, wherein Brodkin opined that each of Elaine's asbestos exposures would have been enough to have caused mesothelioma:

It is also my opinion, with a reasonable degree of medical certainty, that each of Mrs. McPhee's asbestos exposures outlined in Interrogatory responses (dated by Ms. McPhee 2/24/04) including Exhibit A, as well as Marvin McPhee's deposition and declaration, would, alone, have been sufficient to have caused Elaine McPhee's mesothelioma.

Ford argued in its response to Marvin's reply that Brodkin's declaration should be stricken because it contradicted his earlier deposition testimony. In his deposition, Brodkin stated that he would not be offering any product-specific causation opinions about Elaine's exposure to Ford products and her mesothelioma because he did not have any specific information about the Ford products used by Elaine. But in his declaration, he opined that Elaine's exposures at issue in this case would have been sufficient to cause her mesothelioma. He did not explain the contradiction or set forth any additional information he now had that enabled him to offer an opinion that he was unable to offer in his deposition.

At the hearing, the court did not strike Brodkin's declaration, but discussed it before granting summary judgment: THE COURT: I have immense respect for Dr. Brodkin, but I also think that his declarations in many of these cases either were done at a time before all the facts were known, so they're more general, but they aren't

discre[te] enough to say, you know, two OEM Ford brake — proximity to two OEM Ford brake replacements would reproduce this level of exposure which would contribute, so I don't think that they really help, and so I'm going to grant this motion.

Verbatim Report of Proceedings (VRP) (Feb. 3, 2005) at 15. Marvin now appeals summary judgment for the reasons discussed below.

STANDARD OF REVIEW

In reviewing a summary judgment order, this court performs the same inquiry as the trial court. Berry v. Crown Cork & Seal Co., 103 Wn. App. 312, 318, 14 P.3d 789 (2000). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c). We construe reasonable inferences from the evidence in favor of the nonmoving party. Osborn v. Mason County, 157 Wn.2d 18, 22, 134 P.3d 197 (2006). ANALYSIS

Marvin argues that because he presented expert opinion that Elaine's exposures to asbestos during brake jobs were sufficient to have caused her mesothelioma, thus providing sufficient evidence of causation to support his case, the trial court erred in granting summary judgment.

Where an asbestos plaintiff is unable to show that one event alone was a cause of the injury, the "substantial factor" test for causation is used. Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22, 31, 935 P.2d 684 (1997). This test allows a plaintiff to establish causation by showing that the defendant's product was a substantial factor in causing the injury, even though the injury would have occurred without it. Mavroudis, 86 Wn. App. at 28. Asbestos plaintiffs may establish exposure to a defendant's product through circumstantial evidence. Lockwood v. AC&S, Inc., 109 Wn.2d 235, 744 P.2d 605 (1987). Lockwood established factors that a court must consider to determine whether sufficient evidence of causation exists, and one of these factors is expert testimony on the effects of inhalation of asbestos on human health in general and the plaintiff in particular.

Marvin and Ford agree that the substantial factor test was properly applied to causation in this case, but dispute whether, under Lockwood, there was sufficient evidence of causation. The parties' dispute relates to Lockwood's medical causation factor, which the trial court focused on in its oral ruling granting summary judgment. Ford argues that Marvin put forward insufficient medical evidence that the dose of Elaine's exposure to Ford products was a substantial factor causing her mesothelioma, while Marvin points to Brodkin's declaration to argue that the evidence presented was sufficient. Ford argues that Brodkin's declaration should not be considered because it contradicts his earlier deposition testimony. "`When a party has given clear answers to unambiguous [deposition] questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.'" Marthaller v. King County Hosp., Dist. 2, 94 Wn. App. 911, 918, 973 P.2d 1098 (1999) (quoting Klontz v. Puget Sound Power & Light Co., 90 Wn. App. 186, 192, 951 P.2d 280 (1998)). In Marthaller, an expert first stated in a deposition that he would not offer opinions on the standard of care applicable to paramedics and that the procedure performed on the plaintiff failed to meet that standard. In a later affidavit, the expert then stated that he was familiar with the applicable standard of care and that he was of the opinion that the procedure failed to meet that standard. Marthaller, 94 Wn. App. at 918-19.

In his deposition, Brodkin stated that because he did not have specific product information about the Ford cars or brakes at issue, he would not be able to opine with product specificity and thus would testify only generally about brake jobs. In his later declaration, he stated that each of Elaine's exposures to asbestos during the brake jobs alone was sufficient to have caused her mesothelioma. This is a contradiction, similar to the contradiction found in Marthaller. Brodkin provided causation testimony in his declaration that he did not provide in the earlier deposition — in which he had been carefully and thoroughly questioned — without an explanation of how this new opinion was reached. The bald conclusion in the declaration, without an explanation accounting for the differences between the deposition and declaration statements, does

contradict his earlier general testimony at the deposition. Brodkin's declaration fails to create an issue of fact because it contradicts his own deposition testimony, and thus, we affirm summary judgment in favor of Ford for this reason. In the alternative, even assuming the declaration does not contradict the deposition and was properly considered by the trial court, we affirm summary judgment in favor of Ford because Brodkin's declaration is too conclusory to raise a material factual issue. Ford had moved for summary judgment, alleging that Marvin lacked medical causation expert testimony, and the burden then shifted to Marvin to produce an affidavit from a qualified expert witness alleging specific facts that support a medical causation opinion. See Guile v. Ballard Cmty. Hosp., 70 Wn. App. 18, 25, 851 P.2d 689 (1993). "Affidavits containing conclusory statements without adequate factual support are insufficient to defeat a motion for summary judgment." Guile, 70 Wn. App. at 25. In that case, a patient sued her doctor after suffering postsurgical complications, and her expert stated in an affidavit that "`In my opinion [the defendant] failed to exercise that degree of care, skill, and learning expected of a reasonably prudent surgeon at that time in the State of Washington, acting in the same or similar circumstances.'" Guile, 70 Wn. App. at 26.

The court affirmed summary judgment, stating that the affidavit "does little more than reiterate the claims made in Guile's complaint," and thus was insufficient to defeat the defendants' motions for summary judgment. Guile, 70 Wn. App. at 26. Likewise, Brodkin's declaration states broadly that each of Elaine's exposures in this case would have been sufficient to not merely be a substantial factor causing, but rather to be the cause of her mesothelioma. Ford's experts opined that Elaine's exposures were too insignificant to be a substantial factor, but Brodkin's declaration does not refute Ford's evidence or even explain his own opinion. "Broad generalizations and vague conclusions are insufficient to resist a motion for summary judgment. . . . `[A]fter the moving party submits adequate affidavits, the nonmoving party must set forth specific facts that sufficiently rebut the moving party's contentions and disclose that a genuine issue as to a material fact exists.'" Thompson v. Everett Clinic, 71 Wn. App. 548, 555-56, 860 P.2d 1054 (1993) (quoting Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)).

To be sure, the trial court cannot weigh evidence at summary judgment to conclude that certain testimony is not persuasive. But here, even assuming Brodkin's declaration is not contradictory, it is so conclusory that it is insufficient to defeat Ford's motion for summary judgment. Therefore, we affirm.

APPELWICK and BAKER, JJ., concur.

Sources

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