Kent v. Warren Pumps, LLC
Filed 1/31/14 Kent v. Warren Pumps, LLC CA2/3
OFFICIAL REPORTS
California Rules
of Court, rule 8.1115(a), prohibits courts and parties from citing or relying
on opinions not certified for publication or ordered published, except as
specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DONALD KENT et
al.,
Plaintiffs and Appellants,
v.
WARREN PUMPS,
LLC,
Defendant and Respondent.
B243832
(
Super. Ct. No. BC473418)
APPEAL from a judgment of the
Emilie H. Elias, Judge. Reversed.
Simon Greenstone Panatier Bartlett
and Brian P. Barrow for Plaintiffs and Appellants.
Gordon & Rees, Michael
Pietrykowski, Don Willenberg; Carroll, Burdick & McDonough, Laurie J.
Hepler and Gonzalo C. Martinez for Defendant and Respondent.
_______________________________________
Donald Kent (Kent) and
his wife Lisa Kent appeal a summary
judgment in favor of Warren Pumps, LLC (Warren), in a personal injury
action involving exposure to asbestos.
Plaintiffs contend Warren failed to satisfy its initial burden as the party moving for
summary judgment to show that they could not establish that Kent was exposed
to asbestos in products manufactured or supplied by Warren. Plaintiffs also contend the evidence creates
a triable issue of fact on this issue in any event. We conclude that Warren failed to
satisfy its initial burden as the party moving for summary judgment and therefore
will reverse the judgment.
1.
Kent
worked as a maintenance machinist at the Naval Air Rework Facility (NARF) at North Island in the San Diego Bay from 1961
to 1987, with the exception of a four-year period from 1966 to 1970 when
he served in the United States Air Force.
NARF was responsible for maintaining and repairing United States Navy
ships and aircraft. Warren manufactured
and supplied pumps, including some pumps with asbestos in some components.
Kent’s
work at NARF included maintaining and repairing pumps by removing and replacing
gaskets and packing, some of which allegedly contained asbestos. He eventually developed malignant mesothelioma.
2.
Kent and Lisa Kent filed a complaint
against Warren and numerous other defendants in November 2011 alleging that Kent’s
asbestos caused him to develop mesothelioma. They allege that the defendants or their predecessors
in interest manufactured or supplied products containing asbestos to which Kent was occupationally
exposed. They allege counts against Warren for (1) negligence;
(2) strict products liability based on failure to warn and design defect;
and (3) loss of consortium.
Warren moved for summary judgment or
summary adjudication in June 2012 arguing that Plaintiffs’ factually devoid
discovery responses and evidence presented by Warren showed that Plaintiffs could
not establish the element of causation because they could not prove exposure to
asbestos from any product manufactured or supplied by Warren. Warren presented Kent’s deposition testimony and Plaintiffs’ responses to special
interrogatories and inspection demands in support of the motion.
Warren also
presented a declaration by its manager of new pump sales to the United States
Navy, Roland Doktor. He declared, “Not
all of the pumps manufactured by Warren contained asbestos-containing gaskets
and/or packingâ€; “A diligent review of Warren’s records produced no records of
sales of pumps to Naval Air Rework Facility in North Island, Californiaâ€; and,
“A diligent review of Warren’s records produced no records of sales of
replacement asbestos-containing gaskets or packing to Naval Air Rework Facility
in North Island, California.â€
Warren also
presented a declaration by James Delaney, a former commissioned officer in the
navy with experience in the procurement of materials for use in the maintenance
and repair of pumps and equipment on navy vessels. He declared, “The United States Navy’s
procedure for ordering replacement gaskets and packing was to order in large
quantities from the lowest cost supplier, among packing and gasket manufacturers
who had been qualified by the Navy; not from equipment manufacturers. These consumable items are then placed into
the Navy’s supply system and are requisitioned from central supply activities
by operating and support forces as necessary.â€
He declared further, “In my experience, and at the times relevant to
this case as set forth above, the United States Navy primarily purchased
replacement gaskets and packing from outside suppliers, not original equipment
manufacturers such as Warren Pumps, LLC.â€
Plaintiffs opposed the motion arguing
that Kent in his deposition testimony had identified Warren as the manufacturer
of (1) original, factory-installed gaskets and packing that he removed from
Warren pumps; and (2) a replacement preformed gasket that he removed from a
particular Warren pump. They cited Kent’s
deposition testimony that, in some cases, the word “asbestos†appeared on the
gasket itself, on the box it came in, or in the technical manual. They also argued that Warren’s discovery
responses and Doktor’s deposition testimony showed that Warren manufactured
and supplied pumps with gaskets, packing and insulation made from asbestos,
supplied spare gaskets and packing made from asbestos with its new pumps, and
supplied replacement gaskets and packing made from asbestos.
Plaintiffs argued that their
discovery responses did not show an absence of evidence of causation. Instead, they argued, their discovery
responses considered together with Kent’s
deposition testimony and Warren’s discovery responses could reasonably support a finding that Kent was
exposed to asbestos from products supplied by Warren. Plaintiffs also filed evidentiary objections
to the Delaney and Doktor declarations and argued that those declarations failed
to show that Plaintiffs could not establish the element of causation. Warren filed evidentiary objections to Kent’s
deposition testimony.
The trial court granted Warren’s
summary judgment motion. The order granting the motion stated that the
Delaney and Doktor declarations and Plaintiffs’ factually devoid discovery
responses shifted to Plaintiffs the burden of establishing causation. It stated that Plaintiffs failed to create a
triable issue of material fact that Kent was
exposed to asbestos in a product supplied by Warren. The order did not expressly rule on the
parties’ evidentiary objections, but stated that Kent’s
deposition testimony was insufficient to create a triable issue of material
fact. The court entered judgment in
favor of Warren in August 2012. Plaintiffs
timely appealed the judgment.
Plaintiffs contend Warren failed to
satisfy its initial burden on the summary judgment motion to show that they could
not establish that Kent was exposed to asbestos in products manufactured or supplied by Warren. They also contend the evidence creates a triable
issue of material fact on that issue in any event.
1.
A defendant moving for summary
judgment must show that an element of the plaintiff’s cause of action cannot be
established or that there is a complete defense. (Code Civ. Proc., § 437c, subd.
(p)(2).) The defendant can satisfy its initial
burden by presenting evidence that negates an element of the cause of action or
evidence that the plaintiff does not possess and cannot reasonably expect to
obtain evidence needed to establish an essential element. (Miller
v. Department of Corrections (2005) 36 Cal.4th 446, 460 (
burden shifts to the plaintiff to present evidence creating a triable issue of
material fact. (Code Civ. Proc., § 437c,
subd. (p)(2).)
We review the trial court’s ruling
on a summary judgment motion de novo, liberally construe the evidence in favor
of the party opposing the motion, and resolve all doubts concerning the
evidence in favor of the opponent. (
We must affirm a summary judgment if it is correct on any of the grounds
asserted in the trial court, regardless of the trial court’s stated
reasons. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173,
181.)
2.
Initial Burden as the Party Moving for
Summary Judgment
A plaintiff in an asbestos case must
prove that he or she was exposed to asbestos in a product manufactured or
supplied by the defendant (cause-in-fact) and that there is a reasonable
medical probability that such exposure was a substantial factor in causing the plaintiff’s
injury. (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 982‑983;
Whitmire v. Ingersoll-Rand Co. (2010)
184 Cal.App.4th 1078, 1084.) Warren’s summary
judgment motion focused on the cause-in-fact requirement.
A product manufacturer
generally cannot be held liable in strict liability or tort for harm caused by
a product that it did not manufacture or supply. (O’Neil
v. Crane Co. (2012) 53 Cal.4th 335, 362.) “The mere ‘possibility’ of exposure does not
create a triable issue of fact.
[Citation.] ‘It is not enough to
produce just some evidence. The evidence
must be of sufficient quality to allow the trier of fact to find the underlying
fact in favor of the party opposing the motion for summary judgment.’ [Citation.]â€
(Andrews v. Foster Wheeler LLC
(2006) 138 Cal.App.4th 96, 108.)
Warren presented in support of its
summary judgment motion the Doktor declaration stating that it had no record of
any sales to NARF of either pumps or asbestos-containing gaskets or packing. Doktor declared that not all pumps
manufactured by Warren contained asbestos in gaskets or packing. Warren also presented Plaintiffs’ responses
to special interrogatories. Warren
argued that the responses were factually devoid because they provided no
specific information identifying Warren as the manufacturer of any asbestos-containing
gaskets or packing that he worked on. It
cited Kent’s deposition testimony stating that he generally had no way of
knowing whether the gaskets and packing he removed from Warren pumps were
original or replacement equipment and whether they were manufactured or
supplied by Warren. Warren also
presented the Delaney declaration on the Navy’s procurement practices.
Plaintiffs’ interrogatory responses
cited Kent’s deposition testimony that he performed maintenance work on many
Warren pumps, including the removal and replacement of gaskets and
packing. They cited his testimony that
he had to scrape and wire brush the surface to remove the gaskets and that the
packing “was usually dry and brittle and came out in pieces.†They cited his testimony that he installed
preformed replacement gaskets on Warren pumps and that he knew that Warren was
the manufacturer of the replacement gaskets because “We ordered the gaskets or
we had our supply personnel order the gaskets from Warren after looking at the
tech manual and what have you . . . . †The responses also cited Kent’s testimony
that there were instances where he installed a preformed replacement gasket on
a Warren pump that he later removed, and that he knew this because he was
responsible for maintenance in the area and the information was recorded in a
maintenance logbook. The responses also
cited his testimony that he removed the original packing from Warren pumps in
the waterfall system area of the plant.
Thus, Plaintiffs’ discovery
responses presented in support of the summary judgment motion identified Warren
as the manufacturer of preformed replacement gaskets that Kent installed and
later removed and the manufacturer of pumps in the waterfall system area from
which he removed the original packing.
In our view, the absence of information specifically identifying those
particular Warren products as containing asbestos does not render the discovery
responses factually devoid or show that plaintiffs cannot establish
cause-in-fact. Instead, the evidence of
Kent’s exposure to Warren products and his description of the “dry and brittleâ€
material that he removed from the packing together with the undisputed fact
that some of the gaskets and packing supplied by Warren contained asbestos
creates a triable issue of fact as to cause‑in‑fact. Moreover, nothing in the Doktor and Delaney
declarations negated the existence of a triable issue of fact. Those declarations go to the weight of the
evidence and do not show that Plaintiffs cannot establish cause-in-fact.
Warren argues that Kent’s deposition
testimony is internally contradictory and therefore cannot create a triable
issue of fact. Warren cites Kent’s
testimony that although the technical manuals that he consulted stated
“Warren,†he does not know who drafted the manuals. Warren has not shown that it is necessary to
know the author of the manual in order to determine whether it identified
products manufactured by Warren.
Moreover, Kent’s testimony that he had the supply staff order parts from
Warren after consulting the manual tends to show that Warren supplied the
parts, and therefore is evidence of that fact, and does not depend on the truth
of any statement in the manual. For the
same reason, we need not decide whether the statement in the manual identifying
Warren as the manufacturer is hearsay.
(See DiCola v. White Brothers
Performance Products, Inc. (2008) 158 Cal.App.4th 666, 681 [held that
package labels and an instruction sheet were hearsay when offered to prove the
contents of a package].)
name="_ftnref1" title="">[1]
Warren argues that Kent has no personal
knowledge that the orders for parts were actually fulfilled by Warren. We conclude that this goes to the weight of
the evidence and does not preclude the trier of fact from reasonably concluding
that parts ordered from Warren were supplied by Warren.
Accordingly, we conclude that Warren
failed to satisfy its initial burden as the party moving for summary judgment
and therefore is not entitled to summary judgment.
The judgment is reversed. Plaintiffs are entitled to recover their costs
on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
J.
We Concur:
KLEIN, P.
J.
ALDRICH, J.
name="_ftn1" title="">[1]
not decide whether Kent’s deposition testimony presented in opposition to the
summary judgment motion contained inadmissible hearsay relating to the word
“asbestos†on parts or packaging.
