Metropolitan News-Enterprise


Thursday, October 19, 2006


Page 1


C.A. Revives Asbestos Suit by Man Unable to Recall Products’ Names


By Tina Bay, Staff Writer


An asbestos exposure plaintiff’s inability to recall a company’s allegedly hazardous products by name in his deposition testimony does not by itself entitle the company to summary judgment against him, the First District Court of Appeal ruled yesterday.

Reinstating the suit of a now-deceased asbestos exposure victim, Div. One reversed a summary judgment order against him last February by now-retired San Francisco Superior Court Judge James L. Warren

The late plaintiff, Joseph Weber, filed a complaint against mechanical seals manufacturer John Crane, Inc. in September 2004, alleging he had been exposed to the company’s asbestos-containing products from 1960 to 1964 while working as a machinist aboard naval vessels.

Moving for summary judgment last January, John Crane cited Weber’s deposition testimony in asserting that he failed to establish the company was a cause of his mesothelioma.

No Personal Knowledge

Weber—who died this May of the disease, and whose appeal was prosecuted by his widow—had said in his deposition that he had not heard of the name “John Crane, Inc.” and did not recall ever working with or around a product manufactured by that company.  He said he did not associate any product or service with that name, or recall whether he had ever been exposed to asbestos as a result of anything the company did or did not do. 

Weber also testified he assumed the Navy would have documents showing whether he had worked around a John Crane product, but had no personal knowledge of such documents and did not recall any witnesses who could provide information to that effect.

In his opposition to John Crane’s motion, Weber argued the company failed to produce evidence sufficient to shift the burden to him to show triable issue of material facts existed as to causation.  He also submitted a list of several witnesses against the manufacturer.

Warren concluded there was no evidence tying John Crane to Weber’s injuries, and that John Crane was had no obligation to depose Warren’s listed witnesses absent evidence they had information implicating the manufacturer.

But in an opinion for the court, Justice William D. Stein said Weber’s testimony suggested only that he would not be able to prove his case with that testimony alone.

“[A]ll the evidence established was that Weber, without benefit of knowing what products John Crane manufactured or supplied, or what they looked like, or what John Crane’s name or logo might have been, could not recall working with any John Crane product,” he said.

“John Crane attempts to shift the burden of producing evidence to plaintiffs by limiting its discovery to a single question that Weber could not be expected to answer affirmatively:  his ability [to] recall products to which he had been exposed over 40 years ago,” the justice wrote.  “A negative response to that question simply does not create an inference either of nonexposure or of the inability to prove exposure by some other means.”

Shifting of Burden

Under caselaw, Stein said, a defendant moving for summary judgment does not shift the burden of production to a plaintiff by showing that a plaintiff witness has no personal recall of the defendant’s product.

Rather, a defendant must affirmatively show in some way that the plaintiff does not have and cannot by any means reasonably obtain evidence of causation, he explained—noting that the court was not requiring defendants in every case to propound special interrogatories or engage in extensive discovery in order to meet their initial burden of persuasion.

 “A motion for summary judgment is not a mechanism for rewarding limited discovery; it is a mechanism allowing the early disposition of cases where there is no reason to believe that a party will be able to prove its case,” Stein remarked.

Presiding Justice James J. Marchiano and Justice Douglas E. Swager concurred in the opinion.

The Webers’ appellate counsel, Philip A. Harley of Paul, Hanley & Harley in Berkeley, told the METNEWS the court’s ruling was “great” for his clients.

“It’s a point we’ve been making in asbestos cases for some time,” he said.  “It would make it easier to get our cases to trial without trying to hurdle spurious motions for summary judgment.”

But Philip  S. Ward of the San Francisco firm Hassard Bonnington, John Crane’s counsel on appeal, said the effect of the court’s decision would be to increase the costs of defense in asbestos litigation for no good reason.

“The plaintiff in this case had no evidence that the defendant John Crane had any connection with or any responsibility for his alleged injuries,” Ward said. “Yet the court of appeal says, ‘Maybe he’s got something somewhere in some pocket of his suit, and what you’ve got to do is you’ve got to force him to turn out all of his pockets’—in this case by way of written interrogatories—which in our view is simply a decision that we have to spend more money when we shouldn’t have to, and we have to kill to some more trees.”

“It just seems the court didn’t want to see a judgment entered for the defendants in this case for some reason and sent it back for further discovery,” the attorney added.  “We are considering our remaining appellate options.”

The case is Weber v. John Crane, Inc., 02 S.O.S. 5537.


Copyright 2006, Metropolitan News Company