Viale v. Air & Liquid Systems Corp. (N.D. Cal., July 7, 2020, as to Foster Wheeler)

Our plain-English summary of Viale v. Air & Liquid Systems Corp. (U.S. District Court, Northern District of California, July 7, 2020).

Debbie Viale and Amber Jacobs, the wife and daughter of Ronald Viale, sued several companies, including Foster Wheeler LLC, alleging that Viale developed mesothelioma from asbestos exposure and died in July 2018. Their claims against Foster Wheeler were negligence, strict liability, false representation and intentional tort. Foster Wheeler asked for summary judgment, arguing there was no evidence Viale was exposed to asbestos from its products. Plaintiffs relied on testimony from two coworkers, Benjamin and Bernard Upton, and an expert report. Benjamin Upton said he believed a boiler demolished in Viale's presence at Mare Island Naval Shipyard was a Foster Wheeler boiler, but the court found this was a belief without enough factual basis and so was inadmissible lay opinion. Bernard Upton's statements that Foster Wheeler built boilers in the area came from union meetings, not personal knowledge, and he had no memory of seeing Foster Wheeler on a site when Viale was there. The expert's opinion depended on the Uptons' testimony, so it assumed a fact the evidence did not support. The court granted the motion.

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: U.S. District Court, Northern District of California
• Decided: July 7, 2020
• Docket: Case No. 19-cv-00038-MMC
• Stage: Summary judgment
• State: California

Outcome. The court granted Foster Wheeler's motion for summary judgment against plaintiffs Debbie Viale and Amber Jacobs because they lacked admissible evidence that Ronald Viale was exposed to a Foster Wheeler boiler.

What the court held. A defendant is entitled to summary judgment where plaintiffs lack admissible evidence that the decedent was exposed to its product; a lay witness's belief without a sufficient factual basis is inadmissible opinion, and an expert opinion resting on such testimony assumes facts not in evidence.

Issues decided: Expert Testimony, Trial Procedure and Discovery, Product Identification.

The people and their exposure

• Ronald Viale: mesothelioma; died

The defendants

• Foster Wheeler LLC (manufacturer)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Viale v. Air & Liquid Systems Corp. (March 11, 2019). The court denied the plaintiffs' motion to remand, holding that Foster Wheeler and Air & Liquid Systems (successor to Buffalo Pumps) properly removed the case under the federal officer removal statute.
• Viale v. Air & Liquid Systems Corp. (May 21, 2019). The court granted plaintiffs' motion for leave to file a Second Amended Complaint over Foster Wheeler's objection, and directed plaintiffs to file it by May 31, 2019.
• Viale v. Air & Liquid Systems Corp. (July 3, 2019). The court denied the plaintiffs' renewed motion to remand, keeping the case in federal court against Foster Wheeler, Buffalo Pumps (Air & Liquid Systems), Calaveras, GE and the other defendants.
• Viale v. Air & Liquid Systems Corp. (July 6, 2020). The district court granted Foster Wheeler LLC's motion for summary judgment against the plaintiffs, the widow and daughter of Ronald Viale, because they lacked admissible evidence that Viale was exposed to a Foster Wheeler product.
• Viale v. Air & Liquid Systems Corp. (July 6, 2020). The court granted Union Carbide's motion for summary judgment against plaintiffs Debbie Viale and Amber Jacobs because they offered no evidence that Ronald Viale was exposed to a product containing asbestos supplied by Union Carbide.
• Viale v. Air & Liquid Systems Corp. (July 7, 2020). The court granted SPX Cooling Technologies' motion for summary judgment against the plaintiffs (the wife and daughter of Ronald Viale) because they lacked evidence that Viale was exposed to asbestos from a Marley cooling tower.
• Viale v. Air & Liquid Systems Corp. (July 14, 2020). The court granted Exxon Mobil's motion for summary judgment against the wife and daughter of Ronald Viale, finding they lacked evidence that Exxon was negligent as a premises owner or hirer of contractors at the Benicia Refinery.

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.

DEBBIE L. VIALE, etal., Plaintiffs,

v.

AIR & LIQUID SYSTEMS CORP, etal., Defendants.

Case No. 19-cv-00038-MMC.

July 7, 2020.

United States District Court, N.D. California.

AMENDED[*] ORDER GRANTING DEFENDANT FOSTER WHEELER LLC'S

MOTION FOR SUMMARY JUDGMENT; VACATING HEARING

Re: Doc. No. 260

MAXINE M. CHESNEY, District Judge.

Before the Court is defendant Foster Wheeler LLC's ("Foster Wheeler") Motion for Summary Judgment, filed May 29, 2020. Plaintiffs Debbie Viale and Amber Jacobs have filed opposition, to which Foster Wheeler has replied. Having read and considered the papers filed in support of and in opposition to the motion,[1] the Court deems the matter suitable for decision on the parties' respective written submissions, VACATES the hearing scheduled for July 10, 2020, and rules as follows. In the operative complaint, the Second Amended Complaint ("SAC"), plaintiffs allege Ronald Viale ("Viale") "used, handled, or was otherwise exposed to asbestos and asbestos containing products provided by or manufactured by the defendants," that he "contracted the terminal cancer, mesothelioma" as a result of such exposure, and that, in July 2018, he died. (See SAC, Introduction at 3:3-7, ¶ V.) Based on said allegations, plaintiffs, who are, respectively, the decedent's wife and daughter, assert against Foster Wheeler the following four Causes of Action: "Negligence," "Strict Liability," "False Representation," and "Intentional Tort."

In its motion, Foster Wheeler argues plaintiffs lack evidence to establish Viale was exposed to any asbestos-containing product manufactured, sold, or supplied by Foster Wheeler. As set forth below, the Court agrees.

A moving party who does not have the "ultimate burden of persuasion at trial" may meet its initial burden to show entitlement to summary judgment by "show[ing] that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial." See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Put another way, the movant may meet its initial burden "by showing — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." See id. at 1105 (internal quotation and citation omitted).

Here, Foster Wheeler has submitted plaintiffs' responses to interrogatories, excerpts from the depositions of all individuals identified by plaintiffs as persons having knowledge of Viale's exposure to Foster Wheeler products, excerpts from the depositions of two other persons who were coworkers of Viale, and two reports authored by experts designated in the instant case by plaintiffs. (See Baltes Decl. Ex. B at 4:16-10:12, Ex. C at 224:1-225:24, 347:16-349:23, 355:2-11, 356:4-15, 359:19-24, Ex. D at 650:13-651:7, Ex. E at 301:3-03:25, 306:10-307:7, Ex. F at 220:7-222:3, Ex. G at 123:4-124:4, Ex. H at 178:6-180:25, Exs. I-J; see also Smith Decl. ¶¶ 2-4.) Having reviewed that evidence, the Court finds Foster Wheeler has met its initial burden.

Where, as here, the party moving for summary judgment has met its initial burden to "demonstrate the absence of a material fact," see Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), the nonmoving party, to defeat the motion, must, by affidavits or other evidence, "designate specific facts showing that there is a genuine issue for trial," see id. at 324 (internal quotation and citation omitted). In that regard, plaintiffs have offered over six hundred pages of documents comprising excerpts from deposition testimony given in this and other cases, membership lists of two professional organizations, three articles

published in professional journals, and three reports authored by experts designated in the instant case by plaintiffs. (See Belantis Decl. Exs. A-L.)

In their opposition, plaintiffs argue three of their exhibits, specifically, excerpts from deposition testimony given by Benjamin Upton and Bernard Upton and the expert report of Charles Ay, suffice to create a triable issue as to whether the above-referenced boiler was manufactured by Foster Wheeler.[2] As set forth below, the evidence on which plaintiffs rely does not suffice to raise a triable issue.

First, although Benjamin Upton testified that, while working with Viale at the Mare Island Naval Shipyard ("Mare Island"), he "believe[d]" a boiler that was demolished in Viale's presence had been manufactured by Foster Wheeler (see id. Ex. B at 347:16-348:13), said witness's "belief" is, in essence, an inference he draws from an insufficient factual basis, and, consequently, constitutes inadmissible lay opinion testimony. See Fed. R. Evid. 701(a) (providing lay opinion must be "rationally based on the witness's perception").

Next, the Court finds unpersuasive plaintiffs' argument that Benjamin Upton's testimony nonetheless is sufficient when read in connection with the testimony given by Bernard Upton, who stated Foster Wheeler "put boilers in almost everything in the North Bay" (see Belantis Decl. Ex. A at 306:15-22), and, when asked for "clarification," added "there were times out [in] the Contra Costa area that there were boilers being built and they were being built by Foster Wheeler" (see id. Ex. A at 323:5-18). Even putting aside ambiguities as to the referenced time frame and assuming "the Contra Costa [County] area" includes Solano County, in which Mare Island is located, Bernard Upton testified he lacked personal knowledge of any of the above (see id. Ex. A at 323:20-21 (stating `I just kind of like heard it from union meetings and stuff"), and, indeed, when asked if he had "a memory of ever seeing Foster Wheeler on a site when. . . Viale was present," he answered "no" (see id. at 306:23-25).[3]

Lastly, Charles Ay's opinion that Viale was "exposed to asbestos" from a "Foster Wheeler boiler[]" at Mare Island, is predicated on the deposition testimony of Benjamin Upton and Bernard Upton (see id. Ex. J at 9), and, consequently, assumes a fact not supported by the evidence. See Guidroz-Brault v. Missouri Pacific Railroad Co., 254 F.3d 825, 830 (9th Cir. 2001) (affirming exclusion of expert opinion, where opinion "not sufficiently founded on facts" in record). Accordingly, Foster Wheeler's motion for summary judgment is hereby GRANTED.

IT IS SO ORDERED.

[*] The sole amendment is to substitute "Foster Wheeler" for "Union Carbide" on page 4, line 8.

[1] Contrary to plaintiffs' argument, Foster Wheeler's motion was not filed in violation of this Court's Standing Orders. [2] Plaintiffs have submitted undisputed evidence that, at the relevant times, all Foster Wheeler boilers contained asbestos. (See id. Ex. D at 59:15-22.)

[3] Bernard Upton worked with Benjamin Upton and Viale at the above-referenced job at Mare Island. (See id. Ex. A at 151:11.)

Sources

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