Daily Blast September 8, 2015

The California Court of Appeal, First Appellate District, Division One (San Francisco), issued an opinion in Shiffer v. CBS Corporation (Sept. 8, 2015, A139388) ___ Cal.App.4th ___, analyzing whether the Court of Appeal properly granted summary judgment in favor of the defendant in an asbestos case. The Court of Appeal held that the trial court properly granted summary judgment since the plaintiff “did not meet his burden of producing competent and admissible evidence raising a triable issue of material fact on exposure and causation.” (Slip opn., p. 8.)

Plaintiffs alleged Shiffer was exposed to asbestos-containing materials at the power plant where he worked. At his deposition, Shiffer testified that when he arrived at the power plant, “all of the major components in the plant were installed,” but “there was the last stages of construction going on.” His “recollection [was] that the turbine insulation specifically was already put on.” (Slip opn., p. 2.) Shiffer was far less specific in his declaration submitted six months later in opposition to defendant’s summary judgment motion. (Id. at p. 3.) The trial court granted summary judgment. (Id. at p. 4.)

The Court of Appeal affirmed. According to the court, “[p]laintiffs failed to produce evidence raising a triable issue that Shiffer suffered bystander exposure to Westinghouse asbestos while at the plant.” (Slip opn., p. 1.) Plaintiffs did not establish the nature of Shiffer’s observation of the insulation work. (Id. at p. 5.) Shiffer “did not say whether or on how many occasions he observed the insulation process, itself, or whether he merely saw the results of the process after being offsite for some time.” (Ibid.) The court explained that “[m]ere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure.” (Ibid.) Further, Shiffer did not raise a triable issue “that whatever piping insulation work he did observe involved Westinghouse-supplied material.” (Id. at p. 6.) There was no evidence Shiffer was present when the insulation work was performed. (Ibid.) The court concluded that “to make the inference of exposure Shiffer requests would be to engage in speculation, which we may not do.” (Id. at p. 7.)

The court also noted that Shiffer did not provide his experts with his deposition testimony. Rather, he provided his experts with only his cursory declaration and installation progress reports. (Slip opn., p. 7.) Thus, the experts “considered a significantly incomplete universe of information, leaving them without an adequate basis to conclude, as [experts] Depasquale and Horn did, that Shiffer’s exposure to Westinghouse-related asbestos was hazardous and a substantial cause of his mesothelioma.” (Ibid.) Thus, the trial court did not err in excluding plaintiffs’ experts’ opinions. (Id. at p. 8.)