Shiffer v. CBS Corp.

Filed 9/8/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

JAMES SHIFFER et al.,

Plaintiffs and Appellants,

A139388

v.

CBS CORPORATION, (San Francisco City & County

Super. Ct. No. CGC 12-275967)

Defendant and Respondent.

In this asbestos case, plaintiffs James Shiffer and his wife sued CBS Corporation,

whose predecessor, Westinghouse, provided a turbine set and asbestos-containing

insulation for a power plant where Shiffer worked for several months in 1969 and 1970.

The trial court granted summary judgment to CBS. We affirm. Plaintiffs failed to

produce evidence raising a triable issue that Shiffer suffered bystander exposure to

Westinghouse asbestos while at the plant. The trial court also properly denied plaintiffs’

motions for reconsideration and a new trial, because evidence of potential harm from re-

entrainment of asbestos was not new and could have been presented in opposition to the

original summary judgment motion.

BACKGROUND

Plaintiffs sued numerous entities that allegedly caused Shiffer to be exposed to

asbestos, eventually resulting in his developing mesothelioma. As to defendant CBS,

they alleged Shiffer was exposed to asbestos-containing materials at the Ginna power

plant in Rochester, New York in the summer of 1969. Shiffer’s then employer, Pacific

Gas & Electric, had sent him to Ginna in July of that year to train employees on the

operation of Westinghouse equipment being installed in the plant.

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Westinghouse had sold Ginna a turbine generator set and insulation, including

blanket, block, and plastic insulation for the turbine and certain related piping, namely

cross-over and cross-under piping. Westinghouse began shipping the equipment in July

of 1968, a year before Shiffer arrived. Installation took place during 1968 and 1969.

CBS’s person most knowledgeable for the case, Douglas Ware, conceded at his

deposition that the blanket, block, and plastic insulation, including that used on cross-

over and cross-under piping, contained asbestos.

Reports, each labeled “Field Report, Westinghouse Form” and “Steam Service

Department,” recorded progress on the installation. With respect to the insulation work,

these reports stated the following: During the week of May 12, 1969, insulators were on

strike and the high-pressure turbine cylinder and cross-over pipes were not yet insulated.

By the week of June 9, a team of insulators was back on the job. Insulators continued

work on the high-pressure turbine cylinder and cross-over pipes through the weeks of

June 16, July 7, July 14, and July 21. But as of June 24—before Shiffer arrived in July—

the turbine had been “hot functional” and the main, 2-inch-thick layer of insulation would

have been in place. During the week of July 21, work continued on the “insulation of

H.P., Crossover and Crossunder piping, drains, and glands.” As the project entered the

week of August 4, “insulators [were] near completion of insulation of the high-pressure

and cross-over piping.” The final report in the record, for the week of August 11,

suggests insulation was still incomplete, stating “due to job conditions, only two

insulators are working on the Turbine contract.”

At his September 2012 deposition, Shiffer testified when he arrived at Ginna in

July of 1969, “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.” As he would “wander around the plant . . . there was a

small amount of insulation. It would have been piping insulation. . . . But the main

turbine insulation or steam line insulation was already installed.” He then reiterated “the

turbine and its insulation were already installed.” And again: the generators/heat

exchanges “were insulated prior to my arrival;” the “main steam lines were . . . already

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insulated,” though he saw “drains and smaller auxiliary lines” getting insulated.

Although Shiffer observed these things while walking the plant, his workstation was in

another building, separate from the turbine building.

Plaintiffs took Ware’s deposition six months later, on March 5, 2013, and Ware, as

noted, conceded the presence of asbestos in the cross-over and cross-under pipe

insulation. There is nothing from Ware, however, about the nature of the insulation of

any other kinds of pipes. Ware took no issue with the installation progress revealed in

the previously-produced Westinghouse progress reports.

Shiffer then filed a declaration dated March 13, 2013 (nearly two weeks after

Ware’s deposition) in opposition to CBS’s motion for summary judgment. In it, Shiffer

was far less specific about his observations than he had been during his deposition six

months earlier. Shiffer stated that when he arrived at Ginna in July 1969, “construction”

was still in progress, including “insulators insulating piping in the turbine building.” He

further declared he had to enter the turbine building almost every day to educate himself

about the plant to better conduct his training work.

There is no dispute Shiffer did not repair or maintain any Westinghouse

equipment, and did not install or remove any insulation material himself. Nor is there

any dispute that no already-installed insulation was removed or disturbed during Shiffer’s

time at Ginna.

Plaintiffs’ expert, Charles Ay, declared the installation of piping insulation

containing asbestos creates “large amounts of respirable asbestos dust as the material is

cut, manipulated, and handled.” Ay further opined, based on his training, education and

experience, the insulation work documented on the Westinghouse forms would have

“created magnitudes of asbestos-containing dust throughout the work area.” The trial

court excluded this latter statement on objection it was vague and speculative. Though

Ay reviewed other discovery materials, he admittedly did not review Shiffer’s deposition

testimony or his declaration.

Another of plaintiffs’ experts, Christopher Depasquale, considered Shiffer’s

declaration in which Shiffer stated he had observed construction at Ginna, including the

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insulation of piping in the turbine building, and had spent time in this area while

educating himself and conducting training. Assuming insulation work continued into

August 1969, as documented by the Westinghouse work reports, Depasquale opined

Shiffer was exposed to “hazardous” levels of respiratory asbestos as a bystander. The

trial court excluded this opinion on objections that it lacked foundation. Though

Despasquale reviewed Shiffer’s declaration, he did not review his deposition testimony.

Plaintiffs also submitted the declaration of Barry Horn, a medical doctor who had

examined Shiffer. According to Horn, Shiffer’s “exposure from the continuing work on

the turbines at the Ginna plant while he was present in the facility, including the asbestos-

containing insulation on the Westinghouse equipment was a substantial contributing

factor to the total aggregate dose of Mr. Shiffer’s asbestos exposure.” Horn further

opined “[e]ach and every exposure to asbestos experienced by a person with

mesothelioma is a substantial contributing factor in the development of the disease.”

Horn reviewed Shiffer’s summary judgment declaration, but like Depasquale and Ay, did

not consider Shiffer’s deposition testimony. The trial court did not rely upon and did not

address the admissibility of Horn’s declaration.

In its written order granting summary judgment to CBS, the trial court stated

Shiffer “failed to submit evidence . . . he was exposed to abestos-containing products or

materials.” It subsequently denied plaintiffs’ motions for reconsideration and a new trial.

DISCUSSION

Initial Grant of Summary Judgment

“On an 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.” (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1102

[120 Cal.Rptr.2d 23] (McGonnell).)

“ ‘A threshold issue in asbestos litigation is exposure to the defendant’s

product. . . . If there has been no exposure, there is no causation.’ (McGonnell[, supra,

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98 Cal.App.4th [at p.] 1103 . . . .) Plaintiffs bear the burden of ‘demonstrating that

exposure to . . . asbestos products was, in reasonable medical probability, a substantial

factor in causing or contributing to [the] risk of developing cancer.’ (Rutherford v.

Owens–Illinois, Inc. (1997) 16 Cal.4th 953, 957–958 [67 Cal.Rptr.2d 16, 941 P.2d

1203].) ‘Factors relevant to assessing whether such a medical probability exists include

frequency of exposure, regularity of exposure and proximity of the asbestos product . . . .’

[Citation.] Therefore, ‘[plaintiffs] cannot prevail . . . without evidence [of exposure] to

asbestos-containing materials manufactured or furnished by [a defendant] with enough

frequency and regularity as to show a reasonable medical probability that this exposure

was a factor in causing the plaintiff’s injuries.’ [Citations.] ‘While there are many

possible causes of any injury, “ ‘[a] possible cause only becomes “probable” when, in the

absence of other reasonable causal explanations, it becomes more likely than not that the

injury was a result of its action. This is the outer limit of inference upon which an issue

may be submitted to the jury.’ ” ’ ” (Whitmire v. Ingersoll-Rand Co. (2010)

184 Cal.App.4th 1078, 1084 [109 Cal.Rptr.3d 371]; see also Weber v. John Crane, Inc.

(2006) 143 Cal.App.4th 1433, 1438 [50 Cal.Rptr.3d 71].)

In opposing CBS’s motion for summary judgment, plaintiffs maintained Shiffer

suffered bystander exposure because he was present in the turbine room at Ginna during

the installation of Westinghouse-manufactured, asbestos-containing insulation. The trial

court properly concluded plaintiffs’ evidence in support of this theory was insufficient.

To begin with, plaintiffs did not establish the nature of Shiffer’s observation of the

insulation work. In his abbreviated declaration he stated he “observed construction . . .

including insulators insulating piping in the turbine building.” Although he also declared

he was frequently in the turbine room for training, he 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. Mere presence at a site where

asbestos was present is insufficient to establish legally significant asbestos exposure.

(Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 112 [41 Cal.Rptr.3d 229].)

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Additionally, Shiffer failed to raise a triable issue that whatever piping insulation

work he did observe involved Westinghouse-supplied material. Considering both

Shiffer’s detailed deposition testimony and his cursory declaration, it is apparent that

whatever insulating work he may have witnessed involved only some of the Ginna

piping, and that was only the smaller, auxiliary piping.

The installation progress reports and Ware’s deposition testimony, in turn,

established that the asbestos-containing piping insulation Westinghouse supplied related

specifically to the turbine, and the cross-over and cross-under piping. Even if insulation

of these elements continued to some extent while Shiffer was at Ginna, there is no

evidence Shiffer was present in the turbine room when this insulation work was being

done. For example, Shiffer did not state, or provide any other evidence, that the

“auxiliary” piping insulation he described in his deposition was Westinghouse’s cross-

under or cross-over piping.

Nor is it appropriate here to infer that Shiffer was present during the insulation of

the asbestos-containing Westinghouse components. Given the record, this inference

would be “only as likely . . . or even less likely” then the contrary inference. Under such

circumstances, with competing ambiguous inferences at best in “equipoise,” we must

“grant the defendants’ motion for summary judgment . . . because a reasonable trier of

fact could not find for the plaintiff[s].” (Aguilar v. Atlantic Richfield Co. (2001)

25 Cal.4th 826, 857 & fn. 27 [107 Cal.Rptr.2d 841, 24 P.3d 493], italics omitted

(Aguilar).) The question “may not be submitted to a trier of fact for determination in

favor of either the plaintiff[s] or the defendant[], but must be taken from the trier of fact

and resolved by the court itself in the defendants’ favor and against the plaintiff.” (Ibid.)

Rejecting such an inference is all the more appropriate given the timing and

content of Ware’s deposition and Shiffer’s summary judgment declaration, and in light of

Shiffer’s knowledge about the turbine set at issue. Plaintiffs deposed Ware six months

after Shiffer’s deposition with full knowledge of what insulation Shiffer had seen. Yet,

plaintiffs never asked Ware, as far as the record before us discloses, any questions linking

the insulation work Shiffer described in his deposition to the insulation described in the

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Westinghouse progress reports or the insulation of the cross-over or cross-under piping.

And while Shiffer then had a chance to explain any link in his opposing declaration, he

not only failed to do so, but provided only generic assertions of seeing insulation,

essentially backtracking from his more detailed deposition testimony. Moreover, Shiffer

had been sent to Ginna to train employees on the operation of the Westinghouse turbine

equipment. Thus, he had a quantum of knowledge about the system that underscores the

significance of his failure to provide a declaration raising a triable issue that any

insulating work he observed was of the Westinghouse-supplied turbine and cross-over

and cross-under piping. Indeed, this suggests an inference in favor of liability is not

merely “as likely” as one against it, but actually is “less likely,” and, in fact, not

reasonable under the circumstances. (See Aguilar, 25 Cal.4th at p. 857, italics omitted;

Isner v. Falkenberg/Gilliam & Associates, Inc. (2008) 160 Cal.App.4th 1393, 1398

[73 Cal.Rptr.3d 433] [“An inference is reasonable if, and only if, it implies the existence

of an element more likely than the nonexistence of that element.”].)

In short, to make the inference of exposure Shiffer requests would be to engage in

speculation, which we may not do. (McGonnell, supra, 98 Cal.App.4th at p. 1105; Izell

v. Union Carbide Corp. (2014) 231 Cal.App.4th 962, 971 [180 Cal.Rptr.3d 382] [even if

Union Carbide’s asbestos compound made it to a jobsite, “this still leaves speculation

about whether Mr. Izell was present when his workers sanded joint compound that might

have contained Union Carbide asbestos, as opposed to asbestos from one of Kelly-

Moore’s other suppliers”].)

Despite the manifest import of Shiffer’s deposition testimony, Shiffer also did not

provide his experts with it, but provided them with only his cursory declaration and the

installation progress reports. Thus, the experts, whose opinions on causation were

essential to Shiffer’s case (Rutherford v. Owens-Illinois, Inc., supra, 16 Cal.4th at p. 977,

fn. 11; Weber, supra, 143 Cal.App.4th at p. 1438; Wilson v. Southern California Edison

Co. (2015) 234 Cal.App.4th 123, 152 [184 Cal.Rptr.3d 26]), considered a significantly

incomplete universe of information, leaving them without an adequate basis to conclude,

as Depasquale and Horn did, that Shiffer’s exposure to Westinghouse-related asbestos

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was hazardous and a substantial cause of his mesothelioma. An expert’s opinion is only

as good as the facts on which it is built. (Sargon Enterprises, Inc. v. University of

Southern California (2012) 55 Cal.4th 747, 770 [149 Cal.Rptr.3d 614, 288 P.3d 1237]

[expert opinion “ ‘may not be based “on assumptions of fact without evidentiary

support” ’ ”]; Casey v. Perini Corp. (2012) 206 Cal.App.4th 1222, 1235 [124 Cal.Rptr.3d

678] [asbestos expert’s opinion based on assumed facts not admissible]; cf. Howard v.

Owens Corning (1999) 72 Cal.App.4th 621, 633 [85 Cal.Rptr.2d 386] [“the opinion of

any expert witness ‘is only as good as the facts and reasons on which it is based’ ” and a

fact finder ought not credit expert testimony mischaracterizing level of asbestos

exposure].)

This is not simply a case in which the expert’s reasoning was not sufficiently

fleshed out. (See Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173,

189 [153 Cal.Rptr.3d 693]; Powell v. Kleinman (2007) 151 Cal.App.4th 112, 130

[59 Cal.Rptr.3d 618] [expert declarations in opposition to summary judgment are

liberally construed, but still must be based on facts in the record].) Rather, the problem

here is foundational. The experts did not analyze the complete set of facts. Accordingly,

the experts’ opinions did not provide evidence Shiffer suffered exposure, let alone a

hazardous level of exposure, to Westinghouse-related asbestos at Ginna, and the trial

court did not err in excluding such conclusions from the summary judgment record.

(Sargon, supra, 55 Cal.4th at p. 773.)

Due to these fundamental evidentiary shortcomings, Shiffer did not meet his

burden of producing competent and admissible evidence raising a triable issue of material

fact on exposure and causation. Accordingly, summary judgment was properly granted

to CBS. (See Aguilar, supra, 25 Cal.4th at p. 850.)

Denial of Rehearing

The trial court also did not err in denying plaintiffs’ motions for reconsideration

and for a new trial under Code of Civil Procedure sections 1008 and 657. The evidence

related to Shiffer’s re-entrainment exposure, as opposed to bystander exposure, was not

new.

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This is the relevant timeline: Two documents were produced to Shiffer as part of

discovery on February 28, 2013: an April 1979 study evaluating asbestos exposure at a

Tucson power facility and a February 1979 letter concerning air quality at another

facility. Two weeks later, on March 14, 2013, Shiffer’s expert Depasquale signed his

declaration in opposition to summary judgment proffering a bystander theory of exposure

and making no reference to the 1979 documents. About a week after that, on March 22, a

CBS expert, Robert Sawyer, gave one hour of deposition testimony and was briefly

questioned about the two 1979 documents. The summary judgment hearing was four

days later, on March 26, and the order granting summary judgment issued March 28.

Following the summary judgment ruling, plaintiffs’ attorney, on April 1, provided

Sawyer’s 37-page deposition transcript to Despasquale. On April 5, two weeks after

Sawyer’s one-hour deposition was taken and more than a month after the 1979

documents were produced, Depasquale proffered an amplified declaration based on the

study, the letter, and Sawyer’s related testimony, in which he opines Shiffer suffered

asbestos exposure not only as a bystander, but because of re-entrainment.

“Code of Civil Procedure section 1008, subdivision (a) provides that a party

affected by a prior court order may, ‘based upon new or different facts, circumstances, or

law, make application to the same judge or court that made the order, to reconsider the

matter and modify, amend, or revoke the prior order.’ (Code Civ. Proc., § 1008, subd.

(a).) Similarly, Code of Civil Procedure section 657, subdivision 4 provides that a party

may move for a new trial on a showing that there is ‘[n]ewly discovered evidence,

material for the party making the application, which he could not, with reasonable

diligence, have discovered and produced at the trial.’ ” (In re H.S. (2010)

188 Cal.App.4th 103, 108 [114 Cal.Rptr.3d 898].)

Under both sections, the moving party must provide a “ ‘ “satisfactory explanation

for the failure to produce that evidence at an earlier time.” ’ ” (In re H.S., supra,

188 Cal.App.4th at p. 108; Even Zohar Construction & Remodeling, Inc. v. Bellaire

Townhouses, LLC (2015) 61 Cal.4th 830, 833 [189 Cal.Rptr.3d 824, 352 P.3d 391]; New

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York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212 [37 Cal.Rptr.3d 338]

(New York Times).)

We review the denial of reconsideration and new trial motions based on new

evidence for abuse of discretion. (New York Times, supra, 135 Cal.App.4th at p. 212

[§ 1008]; Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 728

[136 Cal.Rptr.3d 197] [§ 657].)

Here, there was no new evidence and, further, no justification for the delay. The

study and letter were produced two weeks before Depasquale’s summary judgment

declaration and a month before the summary judgment hearing. Sawyer’s cursory

deposition testimony also preceded the summary judgment hearing and was readily

available to Shiffer, whose attorney conducted the deposition. (See New York Times,

supra, 135 Cal.App.4th at pp. 212–214 [depositions conducted on eve of summary

judgment hearing do not generate new facts].) Accordingly, Depasquale’s April 5

declaration purporting to reach new opinions based on this evidence was not, itself, new

evidence. Depasquale had the materials he needed to reach his April 5 conclusion before

the summary judgment hearing. Those opinions should have been timely presented but

were not. (In re H.S., supra, 188 Cal.App.4th at pp. 105–106, 109 [in juvenile case,

“belated submission of an expert’s opinion, formed based on evidence that was available

at” time of original hearing does not constitute “new evidence”]; People v. Soojian

(2010) 190 Cal.App.4th 491, 513 [118 Cal.Rptr.3d 435] [“We agree with the trial court

that the expert testimony proffered by Soojian could have been, and perhaps should have

been, presented at trial.”].)

DISPOSITION

The judgment is affirmed. Respondent to recover costs on appeal.

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_________________________

Banke, J.

We concur:

_________________________

Humes, P. J.

_________________________

Dondero, J.

A139388, Shiffer v. CBS Corp.

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Trial Judge: The Honorable Teri L. Jackson

Trial Court: San Francisco City and County Superior Court

Brayton Purcell, Richard M. Grant, Alan R. Brayton and Llyod F. LeRoy for plaintiffs

and appellants.

Pond North, Frank D. Pond, Ann I. Park, Kevin D. Jamison and Gavin D. Whitis; Evert,

Weathersby & Houff and Christopher G. Conley pro hac vice for defendant and

respondent.

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