Viale v. Air & Liquid Systems Corp. (N.D. Cal., July 7, 2020, as to SPX Cooling Technologies)

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 her daughter sued several companies after Ronald Viale died in July 2018 of mesothelioma. They alleged he was exposed to asbestos in products made by the defendants. This order concerned only SPX Cooling Technologies, which was sued solely as successor to Marley Cooling Tower Company. SPX moved for summary judgment, arguing there was no evidence Viale was exposed to asbestos from a Marley cooling tower. The plaintiffs pointed to testimony from two co-workers, Bernard and Steven Upton, and to reports from two experts. The court found that Bernard Upton did not know the make of the cooling towers near which Viale worked. Steven Upton described maintenance on the wooden exterior of a Marley tower about 150 feet away, but there was no evidence that tower contained asbestos, that asbestos was released, or that Viale was nearby. SPX's undisputed evidence showed some Marley towers had asbestos components and others did not. The experts' opinions relied on the Uptons' testimony and so assumed facts the evidence did not support. The court granted summary judgment to SPX.

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 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.

What the court held. A defendant is entitled to summary judgment where the plaintiffs offer no evidence that the decedent was exposed to asbestos from its product, and expert opinions resting on unsupported factual assumptions do not create a triable issue.

Issues decided: Expert Testimony, Product Identification, Successor Liability.

The people and their exposure

• Ronald Viale: mesothelioma; died

The defendants

• SPX Cooling Technologies, Inc. (manufacturer)
• Marley Cooling Tower Company (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 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.
• 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.

ORDER GRANTING DEFENDANT SPX COOLING TECHNOLOGIES, INC.'S

MOTION FOR SUMMARY JUDGMENT

Re: Doc. No. 256

MAXINE M. CHESNEY, District Judge.

Before the Court is defendant SPX Cooling Technologies, Inc.'s ("SPX") "Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment of Plaintiffs' Claim for Punitive Damages," filed May 22, 2020. Plaintiffs have filed opposition, to which SPX has replied. Having read and considered the papers filed in support of and in opposition to the motion,[1] the Court rules as follows.[2]

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 SPX the following four Causes of Action: "Negligence," "Strict Liability," "False Representation," and "Intentional Tort."

In its motion, SPX argues plaintiffs lack evidence to establish Viale was exposed to any asbestos-containing product, specifically, cooling towers, manufactured by SPX's predecessor Marley Cooling Tower Company ("Marley").[3] 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). Alternatively, the moving party may meet its initial burden by "produc[ing] evidence negating an essential element of the nonmoving party's claim." See id. at 1102.

Here, SPX has submitted a declaration by its Claims and Litigation Manager (see DeLoache Decl.), and, in addition, has submitted plaintiffs' initial disclosures, plaintiffs' responses to interrogatories, plaintiffs' responses to requests for production of documents, excerpts from the deposition of each plaintiff, and excerpts from the deposition of each co-worker of Viale who was deposed (see Estrada Decl. Ex. A-C, Ex. D at 4-14, 16-17, Ex. E-G, Ex. H at 4-6, Ex I at 26:7-24, Ex. J at 49:12-17, Ex. K at 37:3-6, 64:23-65:21, 74:10-77:6, Ex. L at 170:6-12, 170:24-172:21, 175:14-19, 179:7-180:19, 183:8-15, 184:18-23, 185:9-15, 185:9-187:3, 188:4-25, 189:19-194:13, 314:12-315:3, Ex. M at 188:24-189:5, 193:10-195:11, 196:8-14, 198:3-14, 199:4-7, 200:2-21, 203:8-209:16, 211:2-12, 214:21-24, 216:8-15, 220:10-222:24, 224:1-12, 225:12-228:9, 228:22-231:19, 233:2-236:24, 238:2-5, 241:11-247:7, Ex. N at 202:11-204:6, Ex. O at 129:14-139:14.) Having reviewed that evidence, the Court finds SPX 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 close to four hundred pages of documents comprising excerpts from deposition testimony given in this case, excerpts from deposition testimony given in two other cases, SPX's responses to interrogatories provided in the instant case, and two reports authored by experts designated in the instant case by plaintiffs. (See Belantis Decl. Exs. A-G.)

Citing to four of those exhibits, specifically, excerpts from deposition testimony given by Bernard Upton and Steven Upton, as well as the expert reports of Charles Ay and James Dahlgren, plaintiffs argue they have submitted evidence sufficient to raise a triable issue as to whether Viale was exposed to asbestos contained in a cooling tower manufactured by Marley. As set forth below, the evidence on which plaintiffs rely does not suffice to raise a triable issue.

First, although Bernard Upton, a co-worker of Viale, testified Viale worked near cooling towers at two jobsites, he testified he did not know "the make of" either such tower. (See id. Ex. B at 169:9-15, 188:23-25; Estrada Decl. Ex. L at 186:25-187:3). Next, although Steven Upton testified that, at one jobsite, "carpenters" were performing "some maintenance" on the exterior wood of a Marley cooling tower located "across the road" and "probably 150 feet" from where he and Viale were working (see Belantis Decl. Ex. A at 75:8-23; Estrada Ex. K at 75:24-76:24), plaintiffs have offered no evidence to support a finding that the cooling tower contained asbestos,[4] let alone that any asbestos would have been released as a result of exterior maintenance, or that Viale was anywhere in the vicinity of the tower at the time of any such release.

Lastly, Charles Ay's opinion that Viale was "exposed to asbestos" from "cooling towers at various locations" and James Dahlgren's opinion that "Viale developed pathologically-confirmed mesothelioma cancer" as a result of his exposure to asbestos-containing products, including "cooling towers," are both predicated on the deposition testimony of Bernard Upton and Steven Upton (see Belantis Ex. F at 8, 12; Ex. G at 1-2, 11), and, consequently, assume 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, SPX's motion for summary judgment is hereby GRANTED.

IT IS SO ORDERED.

[1] Contrary to plaintiffs' argument, SPX's motion was not filed in violation of this Court's Standing Orders. [2] By order filed June 18, 2020, the Court took the matter under submission.

[3] Plaintiffs have sued SPX solely in its capacity as the successor-in-interest to Marley. (See SAC at 4:3, 4:26-27, 8:13-14.) [4] SPX has offered evidence, undisputed by plaintiffs, that, during the relevant time period, some Marley cooling towers incorporated asbestos-containing components, while others did not. (See DeLoache Decl. ¶¶ 13-15.)

Sources

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