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Livingston v. ABB, Inc.

United States District Court, C.D. California

April 2, 2015

PATRICIA ANN LIVINGSTON, individually and as personal representative of the estate of Gerald Livingston, DEBORAH SELBY, DOUGLAS LIVINGSTON, and DAVID LIVINGSTON, Plaintiffs,
ABB, INC., individually and as successor-in-interest to ITE IMPERIAL CO. f/k/a ITE CIRCUIT BREAKER COMPANY, et al., Defendants

For Patricia Ann Livingston, individually and as personal representative of the estate of Gerald Livingston, Plaintiff: Jennifer L Bartlett, Simon Greenstone Panatier Bartlett LP, Long Beach, CA; Robert Allen Green, Stuart J Purdy, Tyson Brannan Gamble, Brian P Barrow, Simon Greenstone Panatier Bartlett PC, Long Beach, CA.

For Deborah Selby, Douglas Livingston, David Livingston, Plaintiffs: Brian P Barrow, Robert Allen Green, Stuart J Purdy, Simon Greenstone Panatier Bartlett PC, Long Beach, CA; Jennifer L Bartlett, Simon Greenstone Panatier Bartlett LP, Long Beach, CA.

For The Boeing Company, successor to McDonnell Douglas, successor-by-merger to Douglas Aircraft, Defendant: David M Abner, Lindsay Weiss, Cooley Manion Jones LLP, San Francisco, CA; John Thomas Hugo, Cooley Manion Jones LLP, Los Angeles, CA.

For CBS Corporation, a Delaware Corporation fka Viacom, Inc. sued as successor-by-merger to CBS Corporation a Pennsylvania Corporation fka Westinghouse Electric Corporation, Defendant: Kevin D Jamison, Kimberly Lynn Rivera, Previn A Wick, Pond North LLP, Los Angeles, CA.

For Curtiss-Wright Corporation, Defendant: Deborah A Smith, LEAD ATTORNEY, Gordon and Rees LLP, Oakland, CA.

For General Electric Company, Defendant: Charles T Sheldon, Derek S Johnson, Katherine Paige Gardiner, Walsworth Franklin Bevins and McCall LLP, San Francisco, CA.

For Gould Electronics Inc, successor-in-interest to ITE Circuit Breaker Company, Defendant: Arturo E Sandoval, Khaled Taqi-Eddin, Foley and Mansfield PLLP, Oakland, CA.

For IMO Industries, Inc., sued individually and as successor-in-interest to Adel Fasteners, and Wiggins Connectors, Defendant: Bobbie R Bailey, LEAD ATTORNEY, Leader and Berkon LLP, Los Angeles, CA; Vanthara Meak, Howard Rome Martin and Ridley LLP, Redwood City, CA.

For United Technologies Corporation, sued as successor-in-interest to Pratt and Whitney, Defendant: John K Son, Tucker Ellis LLP, Los Angeles, CA.




Patricia Ann Livingston, Deborah Selby, Douglas Livingston, and David Livingston (the " Plaintiffs" ) bring this action for the wrongful death of Gerald Livingston (" Livingston" ), allegedly caused by exposure to asbestos and asbestos-containing products. See Second Am. Compl. Wrongful Death (" Am. Compl." ), ECF No. 187. Motions for summary judgment were filed by four defendants: United Technologies Corporation (" UTC" ), Schneider Electric USA, Inc. (" Schneider" ), Curtiss-Wright Corporation (" Curtiss-Wright" ), and Eaton Corporation (" Eaton" ) (collectively, the " Defendants" ). On September 10, 2014, the Court issued an order setting out some of its rulings and inviting further briefing. Here, the Court sets out its remaining rulings and explains its reasoning as to all four motions.

A. Procedural Posture

This action was initiated on February 10, 2012, when Livingston and his wife Patricia Ann filed a personal injury complaint in the Central District of California against more than two dozen defendants for exposing Livingston to asbestos. See Compl., ECF No. 1. On September 3, 2012, Livingston passed away, and his heirs were granted leave to file an amended complaint for wrongful death. See Pls.' Case Status Report 1:20, 2:1-9, ECF No. 184; Minutes Status Conf., Oct. 1, 2012, ECF No. 18 6. A second amended complaint was filed on October 15, 2012, by Patricia Ann Livingston (acting both individually and as personal representative of Gerald Livingston's estate) Deborah Selby, Douglas Livingston, and David Livingston. See Am. Compl.

Four motions for summary judgment, all specifically addressed to the issue of asbestos exposure, are before the Court. First, on September 19, 2013, UTC filed a motion for summary judgment as to all claims against it. Def. United Techs. Corp.'s Notice Mot. Summ. J. (" UTC SJ Mot." ), ECF No. 330; see id., Ex. 1, Def. United Techs. Corp.'s Mot. Summ. J.; Mem. Points & Auths. (" UTC's Mem." ), ECF No. 330-1. The Plaintiffs filed a memorandum in opposition to UTC's motion on October 4, 2013. Pls.' Mem. Points & Auths. Opp'n Def United Techs. Corp.'s Mot. Summ. J. (" Pls.' UTC Opp'n" ), ECF No. 347. UTC filed a reply on October 18, 2013. Def. United Techs. Corp.'s Reply Supp. Mot. Summ. J. (" UTC's Reply" ), ECF No. 365. Almost a year later, on August 27, 2014, the Plaintiffs filed a supplemental opposition brief containing deposition testimony taken after their original opposition brief was filed. See Supp. Opp'n & Pls.' Mem. Points & Auths. Opp'n Def. United Techs. Corp.'s Mot. Summ. J. (" Pls.' Supp. UTC Opp'n" ), ECF No. 421. UTC responded on September 2, 2014, pointing out that the Plaintiffs did not seek leave to file further briefs with the Court and substantively responding to the Plaintiffs' supplemental arguments. See Def. United Techs. Corp.'s Resp. Pls.' Supp. Opp'n Mot. Summ. J.; Decl. John K. Son (" UTC's Supp. Reply" ), ECF No. 424.

Second, on September 20, 2013, Schneider filed a motion for summary judgment on all claims as to it. Notice Def. Schneider Elec. USA, Inc.'s Mot. Summ. J. (" Schneider SJ Mot." ), ECF No. 333; see id., Ex. 1, Mem. Points & Auths. Supp. Def. Schneider Elec. USA, Inc.'s Mot. Summ. J. (" Schneider's Mem." ), ECF No. 333-1. The Plaintiffs filed their opposition on October 4, 2013. Pls.' Mem. Points & Auths. Opp'n Def. Schneider Elec. USA, Inc.'s Mot. Summ. J. (" Pls.' Schneider Opp'n" ), ECF No. 350. Schneider replied on October 18, 2013. Def. Schneider Elec. USA, Inc.'s Reply Br. Supp. Mot. Summ. J. (" Schneider's Reply" ), ECF No. 363.

Third, on September 20, 2013, Curtiss-Wright moved for summary judgment on all claims against it. Def. Curtiss-Wright Corp.'s Notice Mot. & Mot. Summ. J. Causation (" Curtiss-Wright SJ Mot." ), ECF No. 336; see id., Ex. 1, Def. Curtiss-Wright Corp.'s Mem. Points & Auths. Supp. Mot. Summ. J. Causation (" Curtiss-Wright's Mem." ), ECF No. 336-1. The Plaintiffs filed their opposition on October 4, 2013. Pls.' Mem. Points & Auths. Opp'n Def. Curtiss-Wright Corp.'s Mot. Summ. J. (" Pls.' Curtiss-Wright Opp'n" ), ECF No. 348. Curtiss-Wright replied on October 18, 2013. Def. Curtiss-Wright Corp.'s Reply Mem. Points & Auths. Supp. Mot. Summ. J. Causation (" Curtiss-Wright's Reply" ), ECF No. 366.

Fourth, on September 23, 2013, Eaton, individually and as successor-in-interest to Culter Hammer, Inc. (collectively " Eaton" ), moved for summary judgment on all claims as to it. Def. Eaton Corp., Individually & Successor-in-interest Cutler Hammer, Inc.'s Notice Mot. Summ. J. (" Eaton SJ Mot." ), ECF No. 341; see id., Ex. 1, Def. Eaton Corp., Individually & Successor-in-interest Cutler Hammer, Inc.'s Mot. Summ. J. Mem. Points & Auths. (" Eaton's Mem." ), ECF No. 341-1. The Plaintiffs filed an opposition memorandum on October 4, 2013. Pls.' Mem. Points & Auths. Opp'n Def. Eaton Corp.'s Mot. Summ. J. (" Pls.' Eaton Opp'n" ), ECF No. 349. Eaton replied on October 18, 2013. Def. Eaton Corp., Individually & Successor-in-interest Cutler Hammer, Inc.'s Reply Brief Supp. Mot. Summ. J. (" Eaton's Reply" ), ECF No. 364.

An oral hearing on these motions took place on September 5, 2014, and the Court took all issues under advisement. Minutes, Sept. 5, 2014, ECF No. 425. On September 10, the Court issued an order GRANTING the summary judgment motions brought by Schneider, ECF No. 333, and Eaton, ECF No. 341. Order, Sept. 10, 2014, ECF No. 426. The Court's order also requested further briefing from the Plaintiffs on the admissibility of the proffered expert testimony of Mark A. Thomson, whose opinions are central to the issues raised by UTC's and Curtiss-Wright's motions. Id. at 4. Responsive briefing was filed on September 19, 2014. See Further Expert Briefing Re: Mark Thomson's Daubert Admissibility Defs. United Techs. Corp. & Curtiss-Wright Corp. (" Thomson Daubert Mem." ), ECF No. 427.

B. Undisputed Facts[2]

Gerald Livingston was a career aircraft electrician with a history of service in the United States Air Force (" Air Force" ) . See Am. Compl. SI 29. He worked as an aircraft electrician for the Air Force at various bases from 1952 to 1961. Id. This period is the primary focus of the Plaintiffs' claims of exposure regarding UTC, Schneider, Curtiss-Wright, and Eaton. See Pls.' UTC Opp'n 1:2-3; Pls.' Schneider Opp'n 2:5-16; Pls.' Curtiss-Wright Opp'n 1:2-3; Pls.' Eaton Opp'n 2:5-16. In 1961, Livingston left active duty and served in the Air Force Reserve, continuing to work in some capacity as an aircraft electrician. See Am. Compl. ¶ 29.

Livingston was qualified to perform comprehensive electrical work on several models of aircraft flown by the Air Force, including the Douglas C-54 and the Boeing B-29, B-47, B-49, and B-52. Pls.' Statement Genuine Issues Opp'n United Techs. Corp.'s Mot. Summ. J 3:13-20, ECF No. 347-1. Across the several bases where he worked during his ten years of service, Livingston testified that approximately sixty percent of his time was spent in an electrical shop working on individual > airplane components. Livingston Dep.[3] 210:1-213:4. The remaining forty percent of Livingston's work involved outdoor " flight line work," during which he would check or otherwise inspect an assembled aircraft alongside workers specialized in other trades and conducting simultaneous maintenance. See id. 212:16-21, 310:7-311:22.

In the electrical shop, Livingston specifically recalls working on engine starters, generators, and wiring. Id. at 458:20-459:23. While these parts were usually removed from their aircraft by other maintenance workers and brought to the electrical shop as stand-alone parts, Livingston remembered occasions when he would uninstall the parts himself. Id. at 518:10-520:8.

When parts were brought to the electrical shop by others or retrieved from inventory, it is unclear whether Livingston would have been able to identify from what aircraft model they came. Livingston testified that parts came into the shop with repair tags identifying " what aircraft that part came out of," and he specifically recalled seeing " [s]tarter tags." Id. at 238:8-24. On the other hand, Livingston later stated that he and his colleagues worked on parts without knowing which aircraft they were taken from or what the brand name, manufacturer, or supplier of the parts were. Id. at 459:24-460:14.

On the flight line, Livingston conducted pre- and post-flight visual inspections and other electrical repair tasks on fully assembled aircraft. The work required Livingston to, at various times, perform work on all parts of the aircraft, including the cockpit, tail, wings, and bomb bay. Id. at 24:7-28:3. Some of this work required him to be " around" the aircraft engines while they were being maintained by other specialists. Id. at 27:7-12.

Evidence suggests that at least some of Livingston's work was on airplanes that still had all of their original components. Livingston sometimes consulted aircraft repair logs in the course of his work, and he remembered times when he was part of the first crew ever to work on an aircraft, because the machine was so new. Id. at 47:15-62:15. Other evidence suggests that the fleet at the bases where Livingston worked were " relatively new." Decl. Mark A. Thomson Opp'n Defs.' Mots. Summ. J. (" Thomson Decl." ) ¶ 15, ECF No. 348-3 (" During the 1950s, most of the aircraft Livingston worked on were relatively new . . . ." ).

Livingston also worked on control panels, Livingston Dep. 113:21-115:13, and circuit breakers, id. at 116:2-4, 124:19-127:23, in the course of his aircraft work. The only tasks he performed with regard to control panels was to install or remove them from the aircraft using a screwdriver. Id. at 113:4-115:16, 386:16-389:4, 391:23-393:10. This process would occasionally take up to an hour to complete. Id. at 390:23-391:13 (" Most of them were just a five-, ten-minute job. Then there were other ones that took an hour or better." ); see also id. at 425:12-15.


A. Legal Standard

1. Summary Judgment Standard of Review

Summary judgment is proper when, based on the materials in the record, " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). An issue of material fact is genuine " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Whether a fact is material or not depends on the substantive law of the case, and only factual disputes that might affect the outcome of the suit can properly preclude summary judgment. Id. When deciding a motion for summary judgment, the Court views the record " in the light most favorable to the non-moving part[y]" and draws all reasonable inferences in their favor. Pineda v. Toomey, 533 F.3d 50, 53 (1st Cir. 2008). Save as to facts admitted by both parties, the Court must disregard all evidence upon which the moving party bears the burden of proof. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

2. Legal Standards for Asbestos Injury

The California Supreme Court has established a two-part test for determining whether a plaintiff has established that exposure to a defendant's asbestos-containing product was a legal cause of the plaintiff's 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." Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 982, 67 Cal.Rptr.2d 16, 941 P.2d 1203 (1997) (footnote omitted).

All four motions currently before the Court deal with the issue of threshold exposure, so the Court will limit its discussion to that part of the rule. The " threshold exposure" standard sets a relatively low bar and is satisfied by evidence that Livingston was exposed to, or worked with, the defendant's product. See, e.g., Hernandez v. Amcord, Inc., 215 Cal.App.4th 659, 674, 156 Cal.Rptr.3d 90 (2013) (finding threshold exposure based on testimony that plaintiff used the substance, " which created visible dust around his face and clothing," " 'a lot of times,' or 'all the time'" ); Staton v. Am. Standard, MDL No. 875, 2012 WL 3536323, at *1 n.1(II) (C) (i) (b) (E.D. Pa. July 24, 2012) (denying defendant's summary judgment due to evidence that plaintiff, " on at least twenty (20) to thirty (30) occasions, . . . was exposed to and breathed in respirable asbestos" from defendant's product). " Mere speculation or conjecture about exposure to asbestos, however, is insufficient . . . ." Casey v. Perini Corp., 206 Cal.App.4th 1222, 1237, 142 Cal.Rptr.3d 678 (2012); see also McGonnell v. Kaiser Gypsum Co., Inc., 98 Cal.App.4th 1098, 1105, 120 Cal.Rptr.2d 23 (2002) (granting summary judgment for the defendant when evidence suggested that defendant's " products might have been used once," but no evidence showed that products contained asbestos at the time).

When determining " threshold exposure," evidence must support that the exposure in question was to the defendant's product, not a replacement or third-party product. See, e.g., Doucet v. Asbestos Corp., MDL No. 875, 2013 WL 5548678, at *1 n.l(III) (C) (E.D. Pa. May 30, 2013) (granting defendant's summary judgment motion because, while defendant provided original engines with asbestos parts, there is no evidence that the plaintiff was exposed to an original part, as opposed to a replacement); O'Neil v. Crane Co., 53 Cal.4th 335, 349-50, 135 Cal.Rptr.3d 288, 266 P.3d 987 (2012) (" Although the internal gaskets and packing originally supplied with defendants' products contained asbestos, none of these original parts remained on board the [ship] by the time [plaintiff] arrived decades later." ).

B. Motions for Summary Judgment by UTC [ECF No. 330] and Curtiss-Wright [ECF No. 336]

According to the Plaintiffs, Livingston was exposed to asbestos in UTC and Curtiss-Wright products from working on three models of aircraft: the Boeing B-29, the Boeing B-52, and the Douglas C-54. In the period of Livingston's Air Force service, Boeing B-52 aircraft were originally fitted with engines manufactured by Pratt & Whitney, now UTC, Pls.' UTC Opp'n, Ex. C, Boeing Co.'s Further (2d) Supplemental Resps. Pls.' Interrogs. 20, ECF No. 347-7; see also Pls.' UTC Opp'n, Ex. B, Def. United Techs. Corp.'s Resps. Pls.' Req. Admis. (Set One) (" UTC Admis." ) No. 12, ECF No. 347-6, and Boeing B-29 and Douglas C-54 aircraft were fitted with Curtiss-Wright aircraft engines, Pls.' Curtiss-Wright Opp'n, Ex. B, Boeing Co.'s Further (2d) Supplemental Resps. Pls.' Interrogs. 19, 21, ECF No. 348-6. Pratty & Whitney also supplied engines for use on C-54s. UTC Admis. No. 13. Both UTC and Curtiss-Wright have moved for summary judgment on all claims against them, on the basis that the Plaintiffs have failed sufficiently to allege Livingston's exposure to asbestos from the Defendants' products.

1. Thomson's Expert Testimony

As a preliminary matter, the admissibility of the Plaintiffs' expert testimony by Mark Thomson (" Thomson" ) is in dispute, and it is evident that Thomson's testimony is the linchpin of the Plaintiffs' claims of exposure against UTC and Curtiss-Wright. Thomson is an experienced pilot and civilian aviation mechanic and has been the custodian of " one of the largest privately-owned aviation libraries in the United States" for nearly four decades. Thomson Decl. 2:6-18. On this basis, Thomson claims he has " developed a working knowledge of the use of asbestos parts in military aircraft, and how to confirm whether suspected asbestos parts did, in fact, contain asbestos." Id. at 3:3-5.

Thomson's opinions are essential to establishing the Plaintiffs' claim of asbestos exposure. Thomson offers several possible ways Livingston would have been exposed to asbestos in the course of his work: removing and installing the asbestos gaskets that mount engine starters onto engines; removing and replacing gaskets and heat shields from engines; disturbing thermocouples attached to asbestos gaskets; and working with and around clamps containing asbestos. Id. 5:1-6:7. Thomson also asserts that Livingston was " routinely exposed to asbestos dust" during his flight line work. Id. at 4:8-10. As Thomson explains, asbestos dust created by the vibration and abrasion of asbestos components during plane operation would have been regularly disturbed and dispersed into the air by the work of trade specialists working shoulder-to-shoulder with Livingston on the flight line. Id. at 4:1-21. Livingston would have breathed this dust even when not working on the B-52's engine components. Id. at 4:6-8.

Upon review of the Plaintiffs' supplemental briefing, Thomson Daubert Mem., however, the Court rules that his testimony is not admissible. Thomson is simply not a qualified expert under Fed.R.Evid. 702. " Rule 702 grants the district judge the discretionary authority, reviewable for its abuse, to determine reliability in light of the particular facts and circumstances of the particular case." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 158, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). In considering the factors set forth in Daubert v. Merrell Dow Pharms.., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), Thomson's testimony, while relevant, falls short of the reliability standards required under Rule 702.

2. Livingston's Threshold Exposure to Asbestos from Pratt & Whitney and Curtiss-Wright Engines

The Plaintiffs rely on the same generalized allegations regarding the nature of Livingston's work to support their claims of exposure to asbestos from Pratt & Whitney and Curtiss-Wright products. But without Thomson's testimony, the record lacks any evidence that Livingston's flight line work exposed him to asbestos dust in the manner the Plaintiffs claim. To sustain their allegations of exposure, the Plaintiffs would need to proffer evidence that Livingston worked directly with the Defendants' products containing asbestos, and there is little evidence that he did.

As an electrician for the Air Force, Livingston interacted with aircraft and their parts differently than did other trade workers, like mechanics, whose jobs required them directly to act on asbestos components. He appears to have worked on components that cannot be said to have contained asbestos or that cannot be connected either to Pratt & Whitney or Curtiss-Wright products. For example, while Livingston did recall cutting gasket material with a " rough surface" and " kind of a blotchy look" that would shed debris, Livingston Dep. 67:4-69:9, his memory was not specific to any aircraft model, id. at 66:6-21. Supplementary evidence, such as testimony that Pratt & Whitney provided pre-cut gaskets for its engines, only confirms that it is not reasonable to infer that Livingston worked directly with cutting gasket material for the B-52 engine.

Given this lack of evidence, the Court need not reach the other issues disputed in the parties' briefs, such as whether Livingston actually worked on parts from originally-fitted Pratt & Whitney or Curtiss-Wright engines (as opposed to replacement parts), or whether those engines contained asbestos at all. The Court GRANTS summary judgment to UTC and to Curtiss-Wright.

C. Motions for Summary Judgment by Schneider [ECF No. 333] and Eaton [ECF No. 341]

The Plaintiffs' claims against Schneider and Eaton stem from allegations that Livingston was exposed to asbestos in the course of working with control panels and circuit breakers manufactured by the two Defendants' predecessors-in-interest: Square D Company (" Square D" ), known today as Schneider, and Cutler-Hammer, Inc. (" Cutler-Hammer" ), now represented by Eaton. According to the Plaintiffs, these control panels and circuit breakers were made from phenolic materials incorporating asbestos. Pls.' Schneider Opp'n 8:18-9:7; Pls.' Eaton Opp'n 7:14-25. Both Schneider and Eaton seek summary judgment on all claims against them based on insufficient evidence of exposure.

1. Thomson's Expert Testimony

In opposing Schneider's motion to exclude, the Plaintiffs again rely on the testimony of Mark Thomson. See Pls.' Schneider Opp'n 5:23-7:24. The same Daubert gatekeeping considerations discussed above apply to the use of Thomson's testimony here, but analyzing Thomson's qualifications and methodology is of little use in deciding Schneider and Eaton's motions. His statement provides virtually no useful insight into Square D or Cutler-Hammer products. Thomson does not mention Square D, Cutler-Hammer, control panels, or circuit breakers of any kind, nor the work Livingston would perform on such parts. The closest reference to the Defendants' products is Thomson's inclusion of " phenolics" in a laundry list of components containing asbestos in B-29, B-47, and B-52 aircraft. Thomson Decl. ¶ 6. Phenolics are hard, dense materials designed to withstand high temperatures, and the Plaintiffs suggest that Square D and Eaton's control panels and circuit breakers were made of phenolic material containing asbestos. See Pls.' Schneider Opp'n 12:26-13:7; Pls.' Eaton Opp'n 2:28-3:27. Without more, Thomson's single mention of phenolics as an airplane component that can vibrate and abrade during aircraft operation is not enough to implicate Square D or Cutler-Hammer products, nor does it provide useful insight into how phenolic components, specifically, might produce asbestos dust. His opinions thus lend no support to the Plaintiffs' opposition to either motion.

2. Threshold Exposure to Asbestos in Square D Products

The Plaintiffs' best arguments as to exposure point to purported admissions by Schneider and Eaton that their products contained significant amounts of asbestos. Pls.' Schneider Opp'n, Ex. B, Def. Square D Co.'s Objections & Resps. PL's Interrogs. & Req. Prod. Docs., Set I, Resp. 4, ECF No. 350-5; Pls.' Schneider Opp'n, Ex. C, Def. Schneider Elec. USA, Inc.'s (Formerly Known As Square D Co.) Resps. Pls.' Reqs. Admis. 5:26-6:22, 8:22-9:17, ECF No. 350-6; Pls.' Schneider Opp'n, Ex. D, Disc. Dep. Robert Barbaglia 53:21-54:13, 56:6-21, 60:11-61:19, 64:6-66:19, 102:7-103:8, ECF No. 350-7; Pls.' Schneider Opp'n, Ex. E, Videotape Dep. Carlo Martino Apr. 18, 2008 156:6-17, ECF No. 350-8; Pls.' Schneider Opp'n, Ex. F, Dep. Carlo F. Martino Oct. 1, 2008 100:25-101:22, 120:20-124:4, ECF No. 350-9; Pls.' Schneider Opp'n, Ex. G, Def. Schneider Elec. USA, Inc.'s (Formerly Known As Square D Co.) Resps. Pls.' Special Interrogs. 5:19-26, ECF No. 350-10; Pls.' Eaton Opp'n, Ex. B, Cutler-Hammer Inc.'s Am. Resps. GO 129 Standard Abestos Interrogs. 5:22-25, ECF No. 349-5; Pls.' Eaton Opp'n, Ex. C, Video Examination Fred R. Boness 25:22-27:21, 84:25-85:16, 112:17-113:17, ECF No. 349-6. This is not enough, however, to satisfy the Plaintiffs' evidentiary burden.

According to Schneider, the most that can be gleaned from its admissions is that " Square D made some asbestos-containing products at some point in its history." Schneider's Reply 6:1-21. An examination of the Plaintiffs' statement of material facts shows that they rely solely on Schneider's statements that " some" of its composite materials manufactured in the 1950s through the 1980s contained asbestos fibers, and that its high-end phenolic materials sold for commercial use " probably" contained asbestos material. See Pls.' Statement Genuine Issues Opp'n Def. Schneider Elec. USA, Inc.'s Mot. Summ. J. 58-64, ECF No. 350-1.

This is not enough to support a reasonable inference that the Square D materials with which Livingston worked contained asbestos. Further information is required to connect Livingston to the Square D materials that actually contained asbestos, like evidence of what percentage of Square D products contained asbestos during Livingston's working years, or other indications of how likely it is that Livingston would have worked with these specific products. See McGonnell, 98 Cal.App.4th at 1105-06 (declining to draw an inference of exposure when evidence only suggested the plaintiff " might have cut into a wall that might have contained [defendant's product] that might have contained asbestos" (emphasis added)). Beyond Livingston's recollection that the products with which he worked had " Square D" written on them, the Plaintiffs have not been able to provide any model numbers or other specific information that would allow Schneider to pinpoint which products in its line were available to Livingston.

The Plaintiffs' best evidence going to probability is the admission that Square D's commercial phenolic materials " probably" or " most probably" contained asbestos -- but Livingston's testimony about Square D materials does not demonstrate that any of the Square D equipment with which he worked was made of phenolic material. Livingston indicated that he understood phenolics to be designed for high temperature use, but he did not recall ever encountering phenolic materials as part of the electrical systems he worked on. Livingston Dep. 111:1-112:21. When asked to recall what material the control panels with which he worked were made of, he stated that they were " mainly made out of a hard material, like steel." Id. at 113:4-10. When specifically asked what materials other than steel Square D control panels were made of, Livingston could not recall. Id. at 115:17-22. This is insufficient to support the Plaintiffs' attempt to elide information about phenolics generally with Livingston's exposure to Square D products, when there is little evidence that Livingston worked with Square D products made of phenolic materials.

Because the Plaintiffs fail sufficiently to establish that any specific Square D products would have exposed Livingston to asbestos, the Court need not reach Schneider's additional argument that the record lacks admissible evidence that Livingston ever worked with phenolics manufactured by Square D, as opposed to another manufacturer. Schneider's Mem. 7-9. The Court GRANTS summary judgment to Schneider.

3. Threshold Exposure to Asbestos in Cutler-Hammer Products

For similar reasons, the Plaintiffs' claims against Eaton likewise do not survive summary judgment. The evidence establishes that " Cutler-Hammer manufactured and sold asbestos-containing electrical equipment from the 1940s through the late 1970s," Pls.' Eaton Opp'n 7:12-13, but much more is required at this stage. No testimony from Livingston warrants an inference that the Cutler-Hammer products with which he actually worked contained asbestos ingredients, and there is not even evidence establishing any quantum of likelihood that the products would have posed such a danger. Because the Plaintiffs fail to establish threshold exposure in Cutler-Hammer products, the Court GRANTS summary judgment to Eaton.

4. Punitive Damages

The Plaintiffs additionally assert a punitive damages claim against Square D. If the Court rules that Square D ought be granted summary judgment on the issue of actual damages, it may summarily conclude that Square D also ought be granted summary judgment as to punitive damages. " Punitive damages are not simply recoverable in the abstract. They must be tied to oppression, fraud or malice in the conduct which gave rise to liability in the case." Medo v. Superior Court, 205 Cal.App.3d 64, 68, 251 Cal.Rptr. 924 (1988) (emphasis in original) (adding that " punitive damages must bear a reasonable relation to the actual damages" ). In the absence of evidence that a reasonable juror would find Square D liable for actual damages, Square D cannot be held liable for punitive damages.


For the foregoing reasons, the Court GRANTS the motions for summary judgment brought by United Technologies Corporation, ECF No. 330, Curtiss-Wright Corporation, ECF No. 336, Schneider Electric USA, Inc., ECF No. 333, and Eaton Corporation, ECF No. 341.


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