Trial Court: San Francisco Superior Court Trial Judge: Hon. Harold E. Kahn (San Francisco City & County Super. Ct. No. CGC10-275517)
The opinion of the court was delivered by: Reardon, J.
CERTIFIED FOR PUBLICATION
The trial court granted summary judgment to respondent Perini Corporation (Perini),*fn1 resulting in the dismissal of an asbestos action filed against it by appellant Patricia Casey and her late husband John Casey (plaintiffs).*fn2 On appeal, plaintiffs contend that the trial court erred by failing to find that Perini did not meet its initial burden of production of evidence in support of its summary judgment motion, by improperly excluding from evidence their expert witness declaration, and by disregarding their evidence that Perini exposed Casey to asbestos. We affirm.
Between 1962 to 2001, Casey worked as a plumber and pipefitter. He performed this work at countless jobsites. Casey was diagnosed with mesothelioma in January 2010. On March 22, 2010, plaintiffs filed a complaint for personal injury and loss of consortium against numerous defendants, including Perini, alleging that Casey developed mesothelioma through his occupational exposure to asbestos.
Plaintiffs identified Perini as having been the general contractor at three jobsites in San Francisco where Casey had worked: the Civic Auditorium (Auditorium), the Alcoa Building (Building), and the Hyatt Regency Hotel (Hotel). Perini's role as general contractor at these sites was to hire subcontractors (such as Casey's employer), coordinate the timing and scope of their work, and keep the projects within budget.
During discovery, plaintiffs asserted that Casey "was exposed to asbestos by working in close proximity to trades employed by [Perini] handling and disturbing asbestos-containing products" at the Auditorium, Building, and Hotel jobsites. Other than naming Casey, plaintiffs were unable to identify any lay witness with knowledge of facts supporting their claims against Perini.
At his deposition, Casey testified that he had worked at the Building as an apprentice plumber for approximately six months in the mid-1960's. He did not know if any of the products he had used, or used by others in his presence, contained asbestos. He was also unable to identify the brand name, manufacturer or supplier of any of the materials that had generated the dust later swept up or disturbed by Perini workers. Casey did not know if the dust and debris contained asbestos. As to the Auditorium jobsite, Casey recalled that Perini was involved in carpentry and framing. To the extent Perini's activities created dust and debris, Casey thought there was "probably asbestos in whatever [the Perini workers] were cleaning up." Casey, however, did not know the brand name or manufacturer of any of the materials used at the Auditorium jobsite. He also could not differentiate between products that allegedly contained asbestos and those that did not. Finally, as to the Hotel jobsite, Casey did not know whether Perini was even the general contractor at that site.
Relying on Casey's deposition testimony and plaintiffs' discovery responses, Perini moved for summary judgment, arguing inter alia that plaintiffs had no evidence indicating Casey was actually exposed to asbestos as a result of any Perini activity. Plaintiffs opposed the motion, arguing both that Perini did not meet its threshold burden of showing that plaintiffs could not establish all elements of their causes of action and that even if it did, they demonstrated triable issues of material fact about Casey's exposure to asbestos.
Prior to the summary judgment hearing, plaintiffs served new interrogatory responses claiming--for the first time--that Casey had been exposed to asbestos-containing surfacing materials at the Auditorium, Building, and Hotel jobsites. Plaintiffs, however, never identified the brand name, or the suppliers, of any surfacing materials used at the jobsites. They also failed to provide any evidence regarding the contents of the construction materials used at the jobsites and failed to identify anyone who had knowledge of the contents of such materials.
Plaintiffs submitted an expert witness declaration from Kenneth Cohen. In his declaration, Cohen opined that all "surfacing materials," particularly fireproofing, used in the construction of office buildings prior to 1980 contained asbestos. He based his opinion on a set of assumed facts and two federal Occupational Safety and Health Administration (OSHA) regulations that "presumed" all surfacing materials present in buildings constructed before 1980 contained asbestos. (See 29 C.F.R. §§ 1910.1001 (2010) (general industry asbestos standard), 1926.1101 (2010) (construction asbestos standard).) Cohen also relied on records from the Bay Area Air Quality Management District (BAAQMD) regarding the Building, which revealed that asbestos abatement activities had occurred at this site from 1994 to 2004. According to Cohen, these records constituted "evidence of asbestos in the original structural fireproofing material . . . ."
Perini objected to Cohen's declaration, challenging, among other things, its foundation, as well as the expert's reliance on the OSHA regulations and the BAAQMD records. Plaintiffs argued that their expert properly relied on the regulations and records.
The trial court heard the summary judgment motion over the course of three hearings in November 2010. At the end of the first of these hearings, the trial court denied Perini's motion for summary judgment on all issues other than asbestos content. It invited plaintiffs to submit further opposition on two issues--the relevance of the OSHA regulations and the effect of the upcoming deposition testimony of Perini's person most knowledgeable (PMK). Perini was permitted to respond to any opposition before the next hearing.
In their supplemental opposition, plaintiffs asserted that the OSHA regulations established a legal presumption of asbestos-containing materials and that the trial court was required to consider the reasonable inferences of asbestos exposure stemming from this presumption. Plaintiffs also pointed out that the witness Perini had provided as its PMK had no knowledge of the facts regarding the jobsites where Casey had worked; he also had no information concerning the asbestos content of any product used at those jobsites. The PMK further testified that Perini had no information to challenge the OSHA presumption that materials used in the pre-1980 construction of the Building were asbestos-containing.
Plaintiffs also provided the uncertified deposition testimony of Robert N. Sawyer, M.D., defendant's occupational medicine expert, whose deposition had been taken only the day before. Dr. Sawyer testified that Casey's history of occupational exposure to asbestos was sufficient in its aggregate form to cause mesothelioma. Dr. Sawyer further testified that spray-applied fireproofing retardant used on structural steel prior to 1972 more likely than not contained asbestos.
In its supplemental reply, Perini argued that the OSHA regulations were not relevant in the instant case, asserting that the regulations at most created a regulatory presumption against building owners and not against tort defendants. Perini noted that the presumptions were part of a scheme that enables OSHA to force owners of buildings constructed before 1980 to test for the presence of asbestos using OSHA testing procedures and reporting guidelines. Perini added that OSHA enforces these regulations by monetary fines. Perini reasoned that the OSHA presumption should not apply to nonbuilding owners, because the only method for rebutting the presumption is to conduct testing of the buildings, yet there is no evidence that Perini would have the ability or right to conduct such testing.
Following an additional round of supplemental briefing, the trial court held the third and final hearing on Perini's summary judgment motion. At the start of the hearing, the trial court announced that it had determined that the OSHA presumption "is not something that's to be carried forward as a presumption . . . under Evidence Code [section] 600 . . . ." The trial court further questioned whether the presumption could provide the foundation for Cohen's opinion.
In December 2010, the trial court granted Perini's summary judgment motion. In so ruling, the trial court sustained Perini's objections to the Cohen declaration. It found that Perini had satisfied its burden of producing evidence that plaintiffs did not possess and could not reasonably obtain evidence that the materials attributable to Perini to which Casey was exposed actually contained asbestos. The trial court also found that plaintiffs did not produce admissible evidence creating a triable issue of fact on the question of actual exposure to asbestos. In April 2011, the trial court entered judgment for Perini on all causes of action. Plaintiffs timely appealed from the judgment.