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Calif. Team Prevails in Asbestos Appeal

San Francisco Partner Florence McClain, along with San Diego Appellate Practice Partners Jeffry Miller, Lann McIntyre, and Brittany Bartold Sutton, recently prevailed in an appeal from the judgment entered following a trial court’s grant of summary judgment in favor of the defendant in an asbestos suit.

The plaintiffs’ lawsuit was based upon secondary asbestos exposure. The plaintiffs alleged the decedent was diagnosed with mesothelioma resulting, in part, from his father’s alleged work at a shipyard operated by the defendant. The plaintiffs asserted that the decedent was exposed to respirable fibers brought home from the shipyard on his father’s clothing.

The trial court granted the defendant’s motion for summary judgment, finding no triable issue of fact exists as to causation. According to the court, the plaintiffs failed to produce sufficient evidence to support a reasonable inference of the decedent’s exposure to asbestos for which the defendant could be held liable.

The Court of Appeal affirmed. The court determined that the defendant met its initial summary judgment burden by making a prima facie showing that the plaintiffs did not and could not obtain admissible evidence necessary to show causation. The court noted that the plaintiffs’ opposition papers included portions of the defendant’s deposition testimony, which — when coupled with defendant’s other evidence — was sufficient to satisfy the defendant’s burden and to shift the burden of proof to the plaintiffs. Additionally, the court concluded there was simply insufficient evidence of the time, location, or circumstances of the father’s alleged exposure to asbestos. It was not enough to show simply that the plaintiff’s father worked at the defendant’s shipyard during the 1940’s. 


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