Viale v. Foster Wheeler, LLC (2021)

Our plain-English summary of Viale v. Foster Wheeler, LLC (U.S. Court of Appeals, Ninth Circuit, August 3, 2021).

Debbie Viale and Amber Jacobs sued Foster Wheeler and Exxon Mobil under California law in a wrongful death and survival action over Ronald Viale's death from asbestos-related mesothelioma. The case was in federal court, and the district court granted summary judgment to both companies. The Ninth Circuit affirmed in a short unpublished memorandum. As to Foster Wheeler, the court found no solid evidence that Ronald was exposed to its asbestos-containing products. One witness's belief that a boiler at a military installation was a Foster Wheeler boiler was speculative. Another witness's statement that Foster Wheeler installed boilers throughout the North Bay rested on union-meeting talk, not his own observation. The expert's opinion relied on that testimony and so failed too. As to Exxon, which hired the contractors Ronald worked for, the court found no evidence that Exxon supplied unsafe equipment, supplied asbestos-containing parts, retained control over safety in a way that contributed to his injuries, or concealed a hazard. Evidence that Exxon's own employees exposed him at the Benicia refinery was also too speculative.

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. Court of Appeals, Ninth Circuit
• Decided: August 3, 2021
• Docket: Nos. 20-16463, 20-16464
• Stage: Appeal from summary judgment
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: California

Outcome. The Ninth Circuit affirmed summary judgment for Foster Wheeler and Exxon Mobil, rejecting the claims of Debbie Viale and Amber Jacobs for lack of evidence of exposure to Foster Wheeler products or Exxon-caused exposure.

What the court held. Plaintiffs must present non-speculative evidence that the defendant's asbestos-containing product or conduct was a substantial factor in causing the disease; a hirer of an independent contractor is presumptively not liable absent affirmative contribution to the injury, such as supplying unsafe equipment or exercising retained control.

Issues decided: Causation, Wrongful Death and Survival, Expert Testimony, Premises Owner Liability, Product Identification.

The people and their exposure

• Ronald Viale: mesothelioma; died

The defendants

• Foster Wheeler, LLC (manufacturer)
• Exxon Mobil Corporation (premises owner)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Kinsman v. Unocal Corporation (California Supreme Court, 2005). The California Supreme Court affirmed in part the Court of Appeal's reversal of the jury verdict for Ray Kinsman against Unocal and remanded for a new trial, because the jury was not properly instructed that Unocal was liable only for a concealed hazard; it disapproved the Court of Appeal's narrower control-based rule.
• 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.
• 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.

DEBBIE L. VIALE, Individually and as Personal Representative of the Estate of Ronald Viale,

Deceased; AMBER JACOBS, Plaintiffs-Appellants,

v.

FOSTER WHEELER, LLC, FKA Foster Wheeler Corporation, Defendant-Appellee, and

AIR & LIQUID SYSTEMS CORPORATION, sued individually and as successor-in-interest to Buffalo

Pumps, Inc.; etal., Defendants.

DEBBIE L. VIALE, Individually and as Personal Representative of the Estate of Ronald Viale,

Deceased; AMBER JACOBS, Plaintiffs-Appellants,

v.

EXXON MOBIL CORPORATION, Defendant-Appellee, and

FOSTER WHEELER, LLC, FKA Foster Wheeler Corporation; etal., Defendants.

Nos. 20-16463, 20-16464.

Submitted July 30, 2021[**] — San Francisco, California.

Filed August 3, 2021.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding, D.C. No. 3:19-cv-00038-MMC.

Before: McKEOWN and NGUYEN, Circuit Judges, and LAMBERTH,[***] District Judge.

NOT FOR PUBLICATION

MEMORANDUM[*]

Debbie Viale and Amber Jacobs (the "Viales") appeal the district court's grant of summary judgment for Foster Wheeler LLC ("Foster Wheeler") and Exxon Mobil Corporation ("Exxon") in a wrongful death and survival action under California law arising out of Ronald Viale's ("Ronald") development of, and ultimate death from, asbestos-related mesothelioma. The parties are familiar with the facts, so we discuss them below only as relevant. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

We review de novo a grant of summary judgment and the district court's interpretation of state law. Rose v. A.C. & S., Inc., 796 F.2d 294, 296 (9th Cir. 1986).

The Viales did not present evidence sufficient to raise a triable issue of fact that Ronald was exposed to asbestos-containing Foster Wheeler products and therefore that exposure was a "substantial factor" causing Ronald's mesothelioma. Rutherford v. Owens-Illinois, Inc., 941 P.2d 1203, 1223 (Cal. 1997), as modified on denial of reh'g (Oct. 22, 1997). Benjamin Upton's "belief" that the boiler was manufactured by Foster Wheeler because it was at a military installation is solely inferential and speculative. See McGonnell v. Kaiser Gypsum Co., 120 Cal. Rptr. 2d 23, 28 (Cal. Ct. App. 2002) (noting that "[i]t is not enough to produce just some evidence," and finding speculation insufficient to create a triable issue of fact). Likewise, Bernard Upton's testimony that Foster Wheeler installed boilers "in almost everything in the North Bay," is similarly speculative because it was based on information that he heard at union meetings, not his own perception. Fed. R. Evid. 701 ("If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness' perception. . . ."). Since the expert's opinion was based on the Uptons' testimony, it too is insufficient. See Saelzler v. Advanced Grp. 400, 23 P.3d 1143, 1151 (Cal. 2001) (rejecting an expert's opinion as based on speculation and surmise).

The Viales have not presented evidence sufficient to overcome the presumption of non-liability against Exxon as an entity that hired an independent contractor. See Privette v. Superior Court, 854 P.2d 721, 724 (Cal. 1993) (explaining the doctrine of non-liability of hirers). The Viales have not established that Exxon provided Ronald with unsafe equipment that actively contributed to his injuries or that any parts supplied by Exxon contained asbestos. See McKown v. Wal-Mart Stores, Inc., 38 P.3d 1094, 1094 (Cal. 2002) ("[W]hen a hirer of an independent contractor, by negligently furnishing unsafe equipment to the contractor, affirmatively contributes to the injury of an employee of the contractor, the hirer should be liable to the employee for the consequences of the hirer's own negligence."); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Neither have the Viales established that Exxon exercised "retained control" over the safety conditions at the Benicia refinery in a way that affirmatively contributed to Ronald's injuries: at best, the evidence establishes that Exxon exercised general supervision over the work of the independent contractors for whom Ronald worked. See Hooker v. Dep't of Transp., 38 P.3d 1081, 1083, 1091-92 (Cal. 2002) ("[A] hirer is liable to an employee of a contractor insofar as a hirer's exercise of retained control affirmatively contributed to the employee's injuries" and affirmative contribution requires something more than merely "permitting" to happen.). Nor have the Viales established that Exxon failed to disclose a concealed hazardous condition of which Ronald's employers were unaware or could not reasonably discover. Kinsman v. Unocal Corp., 123 P.3d 931, 940 (Cal. 2005).

Finally, the Viales have not presented sufficient evidence to raise a triable issue of fact that Exxon's own employees negligently injured Ronald. See Biles v. Exxon Mobil Corp., 22 Cal. Rptr. 3d 282, 294 (Cal. Ct. App. 2004) ("[I]f a hirer's own employees, working side-by-side with the employees of a contractor, negligently injure one of the contractor's employees, the hirer may be held liable under the normal principles of respondeat superior. . . ."). Expert Charles Ay worked at the Benicia refinery at different times than Ronald; it would be speculative to conclude that conditions were the same at those two different times. Similarly, the testimony of Ronald's co-workers is insufficient to establish that Ronald was exposed to asbestos at the Benicia refinery. See Hunter v. Pac. Mechanical Corp., 44 Cal. Rptr. 2d 335, 339 (Cal. Ct. App. 1995) (requiring plaintiff "to produce facts tending to show. . . that it was a reasonable medical probability that the exposure to [defendant's] asbestos-related activities was a substantial factor in causing [plaintiff's] injuries."). AFFIRMED.

[**] The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). [***] The Honorable Royce C. Lamberth, United States District Judge for the District of Columbia, sitting by designation. [*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Sources

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