Discussed below are two recent asbestos cases, one addressing loss of consortium and the other addressing contractor liability claims:
Leonard v. John Crane, Inc.
In Leonard v. John Crane, Inc. (2012 WL 2126867), the California Court of Appeal (First Appellate District, Division 5) examined a spouse’s right to consortium through the prism of latent toxic exposure injuries. On June 13, 2012, the Court held that a loss of consortium claim lies where a defendant’s negligent or intentional conduct predates a marriage, but where the injury to the spouse is not discovered or discoverable until after the couple marries.
The Leonard case involved a couple, John and Sandra Leonard (“the Leonards”), who married in April 2001. In September 2010, John Leonard was diagnosed with mesothelioma, arising from his exposure to asbestos between 1958 and 1995. In December 2010, the Leonards initiated a lawsuit for personal injury and loss of consortium.
The Court considered the question where a defendant’s negligence toward an unmarried individual causes a latent injury that does not manifest itself until after the individual marries, does the spouse have a cause of action for loss of consortium?
Instead of focusing on the date of defendant’s negligence, the Court centered its analysis on the discovery of plaintiff’s injury. The Court examined the unique nature of latent toxic exposure injuries, noting that there is often an extended “temporal separation” (sometimes decades) between the defendant’s negligent conduct and the manifestation of injury. The Court held that the discovery rule applied to Sandra’s loss of consortium cause of action, reasoning that her claim only existed if John first suffered an injury and John’s claim for negligence only existed insofar as he discovered his injury. Accordingly, because John’s injury was undiscoverable until after he married Sandra, the Court held that she could bring a claim for loss of consortium.
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Casey v. Perini Corp.
In Casey v. Perini Corp. (2012 WL 2122524), the California Court of Appeal (First Appellate District, Division 4) examined what proof a plaintiff needed to withstand a motion for summary judgment in a contractor liability case for toxic exposure. On June 13, 2012, the Court held that a plaintiff challenging a motion for summary judgment must “offer circumstantial evidence . . . sufficient to support a reasonable inference” demonstrating that the threshold issue of exposure is satisfied.
The Perini case involved John Casey (“Casey”), who was employed as a plumber and a pipefitter from 1962 to 2001. Over his career, Casey worked on countless jobsites installing plumbing and waterlines during new construction. In January 2010, Casey was diagnosed with mesothelioma.
In March 2010, Casey and his wife initiated a lawsuit against Perini Corp. (“Perini”) alleging, among other things, that Perini negligently exposed Casey to asbestos. Perini was the general contractor at three of the jobsites where Casey had worked. Casey claimed that he worked alongside Perini subcontractors who swept and cleaned-up asbestos containing materials on these jobsites, which in turn exposed him to asbestos.
Perini moved for summary judgment arguing that Casey had no evidence demonstrating that he was exposed to asbestos in the first instance and offered support in the form of Casey’s deposition testimony and discovery responses. Specifically, Perini presented the following: (1) Casey testified that he did not know if any of the materials on the jobsites contained asbestos; (2) Casey could not otherwise identify the source – brand, manufacturer, supplier, etc – of the products that he claimed were handled by Perini subcontractors; (3) Casey could not identify which products on the jobsites contained asbestos (if any) and which did not; (4) Casey had no other witnesses to corroborate his claim; and (5) Casey did not know whether Perini was even the contractor at one of the jobsites at issue.
Casey countered with an expert witness declaration from Kenneth Cohen (“Cohen”), a retired industrial hygienist. Casey further argued that two federal Occupational Safety and Health Administration (“OSHA”) regulations “presumed” that buildings constructed prior to 1980 all had surfacing materials containing asbestos. He asserted that these OSHA regulations created a legal presumption that the buildings he worked in contained asbestos and, by inference, he was exposed to it.
After examining Casey’s deposition testimony and discovery responses, the Court reasoned that Casey had no personal knowledge about whether he was exposed to asbestos-containing materials on Perini jobsites. Of particular importance, Casey could not identify any asbestos-containing materials that the Perini trades handled. He could only identify the labor performed by the various Perini subcontractors – framing, installing tracks, pouring concrete, etc. Even then, Casey stated that he worked alongside trades whom he believed were employed by Perini. Accordingly, the Court declined to find a triable issue premised on nothing more than Casey’s assumptions.
Next, the Court addressed Cohen’s expert declaration and OSHA regulations, and Casey’s allegations. Cohen opined that Casey was exposed to products presumed to contain asbestos because the buildings he worked on invariably contained firespray (an asbestos-containing product). He added that his position was supported by the two OSHA regulations that “presumed” that buildings constructed prior to 1980 all had surfacing materials containing asbestos. The Court impliedly adopted the trial court’s findings that the OSHA regulations created a presumption only against building owners and not tort defendants. Finally, Cohen failed to provide a factual basis to support the presumption. After careful analysis, the Court rejected Cohen’s declaration.
The holding in Perini is noteworthy for three reasons. First, when faced with a summary judgment motion on a contractor liability case, it is essential that a plaintiff can identify not only the asbestos-containing products, but the source of the product (brand, manufacturer, supplier, etc). Second, in rejecting the declaration of Kenneth Cohen, a widely used plaintiff expert in the field, the Court made clear that it will not entertain expert testimony that lacks foundation. Finally, Perini implicitly rejected the proposition that the OSHA regulations at issue created a legal presumption against tort defendants.
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