GLORIA GALICINAO v. MCMASTER CARR SUPPLY COMPANY

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Court of Appeal, Second District, California.

GLORIA GALICINAO et al., Plaintiffs and Appellants, v. MCMASTER–CARR SUPPLY COMPANY, Defendant and Respondent.

B224915

Decided: October 26, 2011

Heubeck Law, John C. Heubeck and Marc A. Lowe for Plaintiffs and Appellants. Wood, Smith, Henning & Berman, Kevin D. Smith, Seymour B. Everett and Tracy M. Lewis for Defendant and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Plaintiffs, Gloria Galicinao, Jeanette Galicinao, and Janina Jarvis, brought a wrongful death action arising out of the illness and death from mesothelioma of their husband and father, Honorio Galicinao.   Defendant McMaster–Carr Supply Company moved for summary judgment on the ground that plaintiffs could not show that decedent was exposed to an asbestos product supplied by defendant.   Plaintiffs appeal from the summary judgment in favor of defendant contending they met their burden in opposing the motion because their evidence, together with all reasonable inferences, demonstrated the exposure component of causation.   We agree with plaintiffs and reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

After decedent's death on June 19, 2008, plaintiffs brought the instant action alleging causes of action for negligence, strict liability, and loss of consortium against defendant, among others, who plaintiffs believed manufactured or supplied asbestos-containing insulation products to decedent's employer, Component Research Company (CRC).  Plaintiffs alleged that decedent was exposed to defendant's asbestos products at work, resulting in his developing and dying from mesothelioma.

Defendant denied the complaint's allegations and moved for summary judgment on the ground there was no triable issue of material fact as to the essential element of causation.   In particular, defendant asserted that plaintiffs could not show that decedent was exposed to asbestos supplied by defendant because the only evidence plaintiffs had identified linking decedent to defendant's products is the testimony of Gloria,1 decedent's widow, who could not testify that CRC purchased asbestos products from defendant.

Defendant pointed to Gloria's deposition in which she testified that her husband, whose duties as a machinist at CRC included test-oven repair, would design new insulation at home, looking up in defendant's catalog for the parts he would need, “write down the number, and then from there he'd give it to the office so it could be ordered.”   She testified that decedent kept several of defendant's catalogues from different years at home where she saw him refer to them.   According to Gloria, decedent told her, “ ‘I'm going to order the asbestos insulation.’  “ In its motion, defendant asserted that Gloria could not establish that asbestos products were actually ordered from defendant because Gloria had no personal knowledge of the employee at CRC who ordered products, and she acknowledged that her husband was not the person who ordered the products.

Plaintiffs opposed the motion on the grounds, among others, that (1) defendant produced no declarations or other evidence establishing it never sold asbestos-containing products to CRC;  and (2) plaintiffs had sufficient evidence to establish decedent's exposure to asbestos-containing products sold by defendants.

In particular, plaintiffs presented the following evidence:  Gloria was decedent's coworker at CRC during most of the 1960s.   Even when she was no longer employed there, Gloria returned to CRC at least once a month throughout the late 1960's and 1970's to visit friends and have lunch with her husband.   In that way, she was able to keep current with the work decedent was doing and the way the CRC shop was changing.   More than a dozen test ovens at CRC were used to test the performance of CRC's capacitors at various temperature ranges.   The ovens decedent worked with would sometimes arrive at CRC damaged, leaving it to decedent to fashion new asbestos insulation.   He would spend weeks making this new insulation for the ovens.   Also, decedent would construct holding racks for the capacitors from asbestos millboard so that groups of capacitors could be tested in the ovens at one time.   Gloria observed her husband use a machine band-saw to cut asbestos millboard into pieces of 2 feet by 16 inch dimensions needed to build the rack insulation into the ovens.   Gloria also saw decedent using a machine that cuts holes in the asbestos insulation.   Decedent cut the asbestos inside the machine shop and did not wear a mask.   Gloria testified that there was “[a] lot of dust” when her husband cut the asbestos.

Plaintiffs evidence in opposition to the summary judgment motion also showed that decedent kept at home copies of defendant's catalog from various years and several remained in plaintiffs' possession.   Decedent would regularly consult the catalog in the evenings.   Decedent would say to Gloria that he was “ ‘going to order the asbestos insulation.’ “

Plaintiffs also demonstrated that defendant had a commercial relationship with CRC spanning from at least the 1970's to 1980's.   Plaintiffs' attorney submitted, under his authenticating declaration, printouts produced by defendant showing that in the 1970's and early 1980's it supplied CRC with asbestos products, including asbestos board insulation, asbestos sheet millboard, asbestos gaskets, and asbestos fiber.

With respect to defendant's contention that Gloria could not testify that CRC actually ordered defendant's asbestos products, plaintiffs countered that Gloria's testimony was that her husband regularly consulted defendant's catalog and selected items, and also that he provided defendant's product numbers to CRC. This evidence combined with the printouts defendant produced in discovery showing that defendant provided CRC with asbestos millboard, asbestos paper, asbestos tadpole packing, and brake lining, allow for the reasonable inference that CRC placed the orders with defendant, plaintiffs argued.

The trial court granted defendant's summary judgment motion.   Plaintiffs timely appeal from the ensuing judgment.

DISCUSSION

1. Standard of review

A defendant moving for summary judgment carries the initial burden to show that “one or more elements of the [plaintiff's] cause of action ․ cannot be established․”  (Code Civ. Proc., § 437c, subd. (p)(2).)   This burden is initially one of production, i.e., the moving defendant must make a prima facie showing of the nonexistence of any triable issue of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar ).)   If the defendant carries its burden, the burden shifts to the plaintiff to make a prima facie showing that “a triable issue of one or more material facts exists as to that cause of action․”  (Code Civ. Proc., § 437c, subd. (p)(2).)   To meet that shifted burden, the plaintiff “shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action․”  (Ibid.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar, supra, at p. 850.)   In ruling on motions for summary judgment, trial courts “shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence[.]”  (Code Civ. Proc., § 437c, subd. (c);  see also California Traditions, Inc. v. Claremont Liability Ins. Co. (2011) 197 Cal.App.4th 410, 416.)

“On appeal from an order granting summary judgment, we independently examine the record to determine whether there are any triable issues of material fact.  [Citation.]  In performing our review, we view the evidence in the light most favorable to plaintiffs as the losing parties, resolving any evidentiary doubts or ambiguities in their favor.  [Citation.]”  (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1102 (McGonnell ).)

2. Evidentiary objections

Preliminarily we turn to the evidentiary issues raised on appeal.   Defendant attempted to dispute every fact proffered in plaintiffs' separate statement solely through the strategy of posing evidentiary objections to Gloria's deposition testimony.   Defendant argues that this testimony 2 is the only evidence plaintiffs have to establish decedent's exposure to defendant's product, and it is inadmissible.   However, evidentiary objections to facts contained in the separate statement constitute argument, not fact, and so they do not raise factual disputes.   At best, evidentiary objections might undermine the admissibility of this evidence at trial, but they do not reveal a dispute of fact.   What is more important, defendant has not cited us to anywhere in the record showing that the trial court ruled on defendant's objections to Gloria's deposition testimony.   Defendant forfeited the contention that the trial court erred in failing to rule on the objections to this deposition testimony for failure to raise it on appeal.  (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.) Where the trial court fails to rule on evidentiary objections, those objections are presumptively overruled.  (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 534.)   As the only dispute raised is an evidentiary objection that is presumptively overruled and not challenged on appeal, the asserted fact remains undisputed.   Consequently, all of the evidence from Gloria's deposition testimony cited by plaintiffs in their separate statement of undisputed facts is admissible.3

Although defendant did not secure rulings on its objections to Gloria's deposition testimony, it did file evidentiary objections to portions of a declaration Gloria filed in support of plaintiffs' opposition to the summary judgment motion, and to a part of the declaration of plaintiffs' attorney John C. Heubeck.   The trial court ruled on those objections, sustaining them in large part.   Attorney Heubeck declared “Attached hereto as Exhibit ‘C’ are true and correct copies of printouts produced by Defendant McMaster–Carr Supply Company in response to Plaintiffs' first inspection demand.”   Defendants objected to this statement on the grounds of relevance (Evid.Code, §§ 210, 350–351) and lack of authentication (Evid.Code, §§ 1400 & 1401).   Without specifying which ground, the trial court sustained this objection.

We agree with plaintiffs' contention that the trial court erred in sustaining the objections to attorney Heubeck's declaration.  (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169 [we review the trial court's evidentiary rulings on summary judgment for abuse of discretion].)   The printouts Heubeck authenticates are clearly relevant as they show a fact that is of consequence to the determination of this case.  (Evid.Code, § 210.)   That is, the printouts confirm the sales of asbestos-containing insulation products from defendant to CRC during decades decedent was working with asbestos insulation at CRC. Moreover, attorney Heubeck's declaration adequately authenticates the printouts.  “ ‘[A] document is authenticated when sufficient evidence has been produced to sustain a finding that the document is what it purports to be[.]’  [Citation.]”  (The Luckman Partnership, Inc. v. Superior Court (2010) 184 Cal.App.4th 30, 34.)   Attorney Heubeck sufficiently authenticated the documents where he stated he had personal knowledge that the documents attached were true and correct copies of printouts produced by defendant in response to plaintiffs' first inspection demand.  (Id. at pp. 34–35 [authentication adequate where counsel declared “he had personal knowledge that the documents attached to his declaration were the [City of Los Angeles's] verified interrogatory responses in this action, along with exhibits the City attached to its interrogatory responses.”].) Attorney Heubeck represents a party in this action, and the documents authenticated were produced by a party to this action, and so this declaration was sufficient to show that the printouts were what they purported to be.  (Ibid.) Accordingly, the printouts are admissible through Heubeck's declaration.

3. Causation in asbestos-exposure cases

Turning to the merits of the summary judgment motion, our Supreme Court in Rutherford v. Owens–Illinois, Inc. (1997) 16 Cal.4th 953 (Rutherford ) has outlined the plaintiff's burden of proof for the element of causation in the context of a cause of action for asbestos-related injuries.  “[T]he plaintiff must first establish some threshold exposure to the defendant's defective asbestos-containing products, and must further establish in reasonable medical probability that a particular exposure or series of exposures was a ‘legal cause’ of his injury, i.e., a substantial factor in bringing about the injury.   In an asbestos-related cancer case, the plaintiff need not prove that fibers from the defendant's product were the ones, or among the ones, that actually began the process of malignant cellular growth.   Instead, the plaintiff may meet the burden of proving that exposure to defendant's product was a substantial factor causing the illness by showing that in reasonable medical probability it ․ contribut[ed] to the plaintiff [ ] or decedent's risk of developing cancer.”  (Id. at pp. 982–983, fn. & italics omitted;  Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1414–1415 (Lineaweaver ).)   That is, in asbestos litigation, the plaintiff must demonstrate the threshold exposure to the defendant's asbestos-containing product (cause-in-fact) and then the biological process from the exposure which result in disease (substantial factor).  (Rutherford, supra ;  at p. 982;  Lineaweaver, supra, at p. 1416;  accord McGonnell, supra, 98 Cal.App.4th at p. 1103.)

Defendant's summary judgment motion focused on the cause-in-fact component of causation, arguing “[p]laintiffs are unable to demonstrate that decedent ․ was ever exposed to asbestos from any product supplied by [defendant].”  (Italics added.)   Without exposure, there is no causation.  (Whitmire v. Ingersoll–Rand Co. (2010) 184 Cal.App.4th 1078, 1084.)

“As recognized by the Ninth Circuit, ‘[t]wo different approaches have been taken by the courts in determining the sort of evidence an asbestos plaintiff must adduce in order to establish a defendant's products as a legal cause of [his] injuries.’  [Citation.]  The more stringent approach requires particularized proof that the plaintiff came into contact with the defendant's product.  [Citation.]  Under the more lenient approach, it is sufficient if the plaintiff proves the defendant's product was at his or her work site.   [Citation.]”  (Dumin v. Owens–Corning Fiberglas Corp. (1994) 28 Cal.App.4th 650, 655 (Dumin ).)   Our Supreme Court in Rutherford specifically declined to endorse a particular standard for establishing exposure as that issue had not been raised in that case.  (Rutherford, supra, 16 Cal.4th at p. 982, fn. 12.)   However, at a minimum, the plaintiff carries the burden to show “exposure to a defendant's product, of whatever duration, so that exposure is a possible factor in causing the disease․”  (Lineaweaver, supra, 31 Cal.App.4th at p. 1416.)

“Ultimately, the sufficiency of the evidence of causation will depend on the factual circumstances of each case.”  (Rutherford, supra, 16 Cal.4th at p. 958.)   This is also true with respect to the evidence of the exposure component of causation in asbestos litigation.   Mere speculation or conjecture about exposure to defendant's asbestos, however, is insufficient to demonstrate the existence of a triable issue of fact to preclude summary judgment.  (Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1289 (Hunter ), disapproved on another ground in Aguilar, supra, 25 Cal.4th at pp. 854–855, fn. 23 [where plaintiff testified he was unfamiliar with the defendant and could not recall working in same area with the defendant's employees constituted speculation and conjecture that they might have been in same place at different times].)   Nor does the simple “possibility” of exposure create a triable factual issue.  (McGonnell, supra, 98 Cal.App.4th at p. 1105 [speculation that at same time plaintiff might have encountered a wall that might have contained the defendant's compound that might have contained asbestos insufficient evidence].)

The quality of evidence of exposure must be sufficient “to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment.”  (McGonnell, supra, 98 Cal.App.4th at p. 1105.)   At the very least, the plaintiff must provide “circumstantial evidence ․ sufficient to support a reasonable inference of exposure ” to defendant's asbestos product.  (Lineaweaver, supra, 31 Cal.App.4th at p. 1420;  accord Hunter, supra, 37 Cal.App.4th at p. 1290 [plaintiff must provide “evidence with respect to the time, location and actual circumstances of his exposure” to defendant's asbestos];  Dumin, supra, 28 Cal.App.4th at p. 656 [“circumstantial evidence [must] be of sufficient weight to support a reasonable inference of causation”].)

In Lineaweaver, supra, 31 Cal.App.4th 1409, three separate plaintiffs sued alleging exposure to asbestos insulation products while on the job.   The trial court granted the defendant's motion for nonsuit for lack of sufficient evidence of exposure to the defendant's product.  (Id. at pp. 1412–1413.)   With respect to the plaintiff Lineaweaver, the appellate court found sufficient circumstantial evidence to support a reasonable inference of his exposure to asbestos.  (Id. at p. 1413.)   The relevant evidence included that:  the defendant distributed asbestos insulation products to Lineaweaver's workplace beginning in 1948;  Lineaweaver worked at that site from 1950 to 1984, repeatedly working with and around asbestos insulation;  Lineaweaver worked throughout the sprawling refinery which has insulation over about two-thirds of its pipes and much of its equipment;  Lineaweaver saw boxes of the defendant's Pabco products at the refinery.  (Id. at p. 1419–1420.)   The Lineaweaver court held “While there was no direct evidence that Lineaweaver was exposed to Plant-supplied Pabco, the circumstantial evidence was sufficient to support a reasonable inference of exposure.   Unlike Dumin v. Owens–Corning Fiberglas Corporation, supra, 28 Cal.App.4th 650, in which we found insufficient evidence of exposure to a particular asbestos product, plaintiff has established that defendant's product was definitely at his work site and that it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it during his more than 30 years of working with and around asbestos throughout the refinery.”  (Id. at p. 1420.)

Here, as in Lineaweaver, plaintiffs have presented circumstantial evidence sufficient to support a reasonable inference of decedent's exposure to defendant's asbestos product.   Decedent worked with asbestos insulation, cutting and drilling asbestos products.   He was exposed to its dust on a regular and frequent basis from the 1960's at least through the 1980's.   Indeed, defendants do not attempt to dispute that decedent was exposed to asbestos during the many decades he worked at CRC. Furthermore, decedent kept defendant's catalogs in his home and consulted them in the evenings looking for products for the oven insulation he would build, as he sketched out and planned the following day's work.   There was no evidence he used any other catalog or supplier for his selection of asbestos products.   Additionally, plaintiffs offered printouts from sales records from the 1970's and 1980's showing a lengthy commercial relationship between CRC and defendant under which CRC purchased asbestos millboard, paper, and tadpole packing products directly from defendant during the years decedent was working with asbestos at CRC. Tellingly, defendant did not attempt to show in its moving papers or argue on appeal that there were other suppliers of asbestos.   In short, plaintiffs produced sufficient evidence in opposition to defendant's summary judgment motion to raise a reasonable inference under either the lenient or stringent tests that decedent was exposed to defendant's asbestos products.   Reasonable inferences are that plaintiff came into contact with defendant's asbestos millboard or at the very least that defendant's asbestos millboard was at decedent's worksite during the decades decedent was employed there and cutting and shaping asbestos insulation.

Defendant argues, citing Dumin, McGonnell, and Hunter, that in the absence of evidence CRC actually ordered or purchased defendant's asbestos products, plaintiffs' evidence of exposure to asbestos supplied or manufactured by defendant was merely speculative.   Simply showing that a product was “potentially present,” defendant argues, is insufficient to prevail on summary judgment.   We disagree.   In those cases, the plaintiffs could not identify the defendants' asbestos products and the evidence showed no more than the mere possibility that the defendants' products might have been present at the workplace.  (Dumin, supra, 28 Cal.App.4th at p. 655;  McGonnell, supra, 98 Cal.App.4th at p. 1101;  Hunter, supra, 37 Cal.App.4th at pp. 1284–1285.)   By contrast, here plaintiffs produced evidence that decedent consulted defendant's product catalog for asbestos millboard, that CRC purchased asbestos millboard from defendant during the decades decedent was employed there, and that decedent cut and drilled asbestos products while on the job.

Therefore, plaintiffs' evidence is more substantial than mere possibility or potential.   As Lineaweaver demonstrates, inferences of exposure can be sufficient.  (Lineaweaver, supra, 31 Cal.App.4th at p. 1420 [“plaintiff has established that defendant's product was [ (1) ] definitely at his work site and that [ (2) ] it was sufficiently prevalent to warrant an inference that plaintiff was exposed to it during his more than 30 years of working with and around asbestos throughout the refinery.”].) Plaintiffs' evidence shows that decedent was regularly exposed to asbestos and dust from asbestos;  and it was reasonable to infer from Gloria's testimony about defendant's catalogs combined with the printouts produced by defendant, that decedent was exposed to asbestos-containing materials obtained by CRC from defendant over decades.   The absence of testimony from the person who purchased asbestos products does not render this cited evidence inadequate.   The quality of the testimony remains to be tested by cross-examination, and be judged by a fact finder.   Suffice it to say that plaintiffs have carried their burden in opposing the summary judgment motion.   On the record presented, we cannot conclude as a matter of law that the evidence does not satisfy the quantum and quality requisite for a finding in plaintiffs' favor.

DISPOSITION

The judgment is reversed.   Appellants to recover costs on appeal

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. We refer to Gloria Galicinao by her first name for clarity and intend no disrespect by it..  FN1. We refer to Gloria Galicinao by her first name for clarity and intend no disrespect by it.

FN2. Most of the objections to Gloria's deposition testimony are on the grounds of hearsay.  “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”  (Evid.Code, § 1200, subd. (a), italics added.)   However, in most of the deposition clauses to which defendants objected, Gloria describes what she observed, not what was said, and that is not hearsay..  FN2. Most of the objections to Gloria's deposition testimony are on the grounds of hearsay.  “ ‘Hearsay evidence’ is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”  (Evid.Code, § 1200, subd. (a), italics added.)   However, in most of the deposition clauses to which defendants objected, Gloria describes what she observed, not what was said, and that is not hearsay.

FN3. Defendant also argues that Gloria was the only product identification witness plaintiffs named in response to defendant's interrogatories seeking facts supporting the allegation that decedent was exposed to asbestos from a product supplied by defendant.   But Gloria is not a product identification witness in the sense that she is not identifying whether a particular asbestos product to which decedent was exposed was labeled with defendant's name.   Rather, she is the witness who saw decedent work with asbestos and planned how he was going to work with asbestos using defendant's catalogs.   In our view, the printouts defendant produced showing its business relationship with CRC involving asbestos millboard, asbestos paper, tadpole packing, and brake lining satisfies the product identification issue..  FN3. Defendant also argues that Gloria was the only product identification witness plaintiffs named in response to defendant's interrogatories seeking facts supporting the allegation that decedent was exposed to asbestos from a product supplied by defendant.   But Gloria is not a product identification witness in the sense that she is not identifying whether a particular asbestos product to which decedent was exposed was labeled with defendant's name.   Rather, she is the witness who saw decedent work with asbestos and planned how he was going to work with asbestos using defendant's catalogs.   In our view, the printouts defendant produced showing its business relationship with CRC involving asbestos millboard, asbestos paper, tadpole packing, and brake lining satisfies the product identification issue.

KLEIN, P. J. CROSKEY, J.