Opinion
No. 61913-6-I.
February 8, 2010.
Appeal from a judgment of the Superior Court for King County, No. 05-2-28978-3, Nicole MacInnes, J., entered November 27, 2007.
Reversed by unpublished opinion per Lau, J., concurred in by Dwyer, A.C.J., and Cox, J.
ORDER
1. GRANTING APPELLANT'S MOTION FOR RECONSIDERATION;
2. WITHDRAWING OPINION FILED AUGUST 24, 2009; AND
3. SUBSTITUTING OPINION
On August 24, 2009, this court filed its unpublished opinion in the above-entitled action. Appellant has moved for reconsideration. The panel has decided to grant the motion for reconsideration, withdraw the opinion filed August 24, 2009, and replace it with the attached opinion.
IT IS HEREBY ORDERED that the appellant's motion for reconsideration is granted;
IT IS FURTHER ORDERED that the unpublished opinion of this court filed in the above-entitled action on August 24, 2009, be withdrawn and that the attached opinion be substituted in its place.
Dated this ___ day of February 2010.
On August 24, 2009, this court filed its unpublished opinion in the above-entitled action. Appellant has moved for reconsideration. The panel has decided to grant the motion for reconsideration, withdraw the opinion filed August 24, 2009, and replace it with the attached opinion.
IT IS HEREBY ORDERED that the appellant's motion for reconsideration is granted;
IT IS FURTHER ORDERED that the unpublished opinion of this court filed in the above-entitled action on August 24, 2009, be withdrawn and that the attached opinion be substituted in its place.
Dated this ___ day of February 2010.
Darlyne Cashman, individually and as the personal representative of the estate of Robert Cashman, claimed that while working on furnaces and generators manufactured by Pacific Scientific Company, Robert Cashman was exposed to asbestos-containing firebrick, block, gaskets, and packing insulation; Pacific failed to warn him about asbestos exposure health hazards; and he died of mesothelioma as a result. But the trial court dismissed the claims on summary judgment, finding that the estate failed to present sufficient admissible evidence that Cashman was exposed to an asbestos-containing product manufactured by Pacific. On cross-appeal, Pacific also argues that the trial court erred in denying its motion to dismiss as a sanction for spoliation of evidence after Cashman's body was cremated without an autopsy. We conclude that the trial court properly exercised its discretion by denying Pacific's dismissal motion as a sanction for spoliation of evidence. But because the estate presented sufficient evidence to raise a material fact issue on whether Cashman was exposed to asbestos from a product manufactured or sold by Pacific, we reverse summary judgment dismissal.
FACTS
From approximately 1967 until 1975, Robert Cashman worked at Puget Sound Heat Treating (PSHT) in Tacoma as a heat-treating helper and later as a shop foreman. And he also worked as a heat treater at the Naval Underseas Warfare Center in Keyport from approximately 1975 until he retired in 1997. His job duties included repairing and maintaining the heat-treating furnaces and endothermic gas generators.
In May 2005, Cashman was diagnosed with mesothelioma, a fatal cancer occurring in the lining of the lung that is frequently associated with asbestos exposure. In August 2005, the estate filed suit against numerous defendants, including Pacific. The estate alleged that Pacific manufactured and sold asbestos-containing furnaces and generators, Pacific failed to warn Cashman of the dangers of asbestos exposure, and he contracted mesothelioma as a result. He died on November 20, 2005.
Cashman's videotaped perpetuation deposition was taken on September 30, 2005. Before his death, defense counsel notified the estate's attorneys that they reserved the right to have a defense pathologist observe the autopsy and to preserve all lung and pleural tissue samples pursuant to a 1984 "consolidated pretrial style order." They later learned, however, that Cashman had been cremated without an autopsy. Consequently, on August 10, 2006, Pacific and other defendants moved to dismiss the lawsuit, arguing spoliation of material causation evidence. The trial court denied the motion after concluding defendants failed to establish spoliation occurred. Defendants then sought, but we denied, discretionary review. The defendants renewed their motion to dismiss the lawsuit as an appropriate sanction for spoliation. Rather than dismiss, the trial court ordered a lesser sanction.
The style order, which applies to asbestos lawsuits litigated in King County, provides that "autopsies should be conducted for each plaintiff who expires for any reason during the pendency of this litigation, subject to religious or ethical considerations personal to that plaintiff or the immediate family."
Meanwhile, on August 31, 2007, Pacific moved for summary judgment dismissal. It argued the estate lacked sufficient admissible evidence to demonstrate that the particular Pacific equipment Cashman worked on had been manufactured with asbestos. In response, the estate pointed to Cashman's deposition, his expert's testimony, and documents obtained in discovery to show that Pacific manufactured asbestos-containing furnaces and generators. The estate also argued that Pacific owed a duty to warn Cashman about asbestos-containing materials manufactured by other companies that were later installed as replacement insulation on Pacific's products.
The record shows that Pacific was founded in 1919 as a precision instrument company. Eventually it began manufacturing furnaces and generators. Pacific sold its furnace division to the Selas Corporation in 1977. It is undisputed that Pacific never manufactured asbestos insulation.
On November 27, 2007, the trial court granted Pacific's motion for summary judgment dismissal, concluding that the estate failed to produce sufficient evidence to raise a genuine issue of material fact that Cashman had been exposed to respirable asbestos fibers from a product manufactured or sold by Pacific. The estate appealed.
ANALYSIS
Summary Judgment
The estate argues the trial court erred in granting Pacific's motion for summary judgment because the evidence and reasonable inferences raise material issues of fact on whether the two Pacific furnaces and the generator Cashman worked on contained asbestos insulation. Appellate courts review summary judgment orders de novo, engaging in the same inquiry as the trial court. Seattle Police Officers Guild v. City of Seattle, 151 Wn.2d 823, 830, 92 P.3d 243 (2004). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Seattle Police, 151 Wn.2d 830; CR 56(c). "A material fact is one upon which the outcome of the litigation depends." Kim v. O'Sullivan, 133 Wn. App. 557, 559, 137 P.3d 61 (2006). When determining whether an issue of material fact exists, we construe all reasonable inferences in favor of the nonmoving party. Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). "We do not weigh the evidence or determine the truth of the matter; the only question is whether there is a genuine issue for trial." Arreygue v. Lutz, 116 Wn. App. 938, 940-41, 69 P.3d 881 (2003).
A defendant moving for summary judgment may meet the initial burden by pointing out the absence of evidence to support the nonmoving party's case. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989). "If the moving party is a defendant and meets this initial showing, then the inquiry shifts to the party with the burden of proof at trial, the plaintiff." Young, 112 Wn.2d at 225 (footnote omitted). The facts set forth must be specific, detailed, and not speculative or conclusory. Sanders v. Woods, 121 Wn. App. 593, 600, 89 P.3d 312 (2004). If, at this point, the plaintiff "'fails to make a showing sufficient to establish the existence of an element essential to [her] case, and on which [she] will bear the burden of proof at trial,'" the trial court should grant the motion. Young, 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).
To recover on its claims against Pacific, the estate must prove Pacific sold a product that was not reasonably safe as designed or that lacked adequate warnings and the unsafe condition of the product was a proximate cause of Cashman's injury. 6 Washington Practice: Washington Pattern Jury Instructions: Civil 110.21, 110.21.01 at 621-22 (5th ed. 2005). Both product liability and negligence actions carry a proximate cause requirement that the plaintiff must establish by a preponderance of the evidence to prevail. RCW 7.72.030(1); Iwai v. State, 129 Wn.2d 84, 96, 915 P.2d 1089 (1996). "Generally, under traditional product liability theory, the plaintiff must establish a reasonable connection between the injury, the product causing the injury, and the manufacturer of that product." Lockwood v. AC S., Inc., 109 Wn.2d 235, 245, 744 P.2d 605 (1987). But asbestos plaintiffs in Washington may establish exposure to a defendant's product through direct or circumstantial evidence. Allen v. Asbestos Corp., 138 Wn. App. 564, 571, 157 P.3d 406 (2007).
Lockwood identified several factors a court must consider when evaluating whether sufficient evidence of causation exists: (1) plaintiff's proximity to the asbestos product when the exposure occurred and the expanse of the work site where asbestos fibers were released; (2) the extent of time the plaintiff was exposed to the product and (3) the types of asbestos products to which plaintiff was exposed and the ways in which the products were handled and used.
Berry v. Crown Cork — Seal Co., 103 Wn. App. 312, 323-24, 14 P.3d 789 (2000) (citing Lockwood, 109 Wn.2d at 248).
While this appeal was pending, the Supreme Court held that a manufacturer owes no common law duty to warn of the hazards of asbestos insulation that it did not manufacture, sell, or supply. Simonetta, 165 Wn.2d at 354; Braaten, 165 Wn.2d at 389-90. Absent a legal duty, Pacific is not liable for failure to warn Cashman about the hazards of replacement asbestos insulation made by third parties and installed on its equipment. Accordingly, our review is limited to the question of whether the estate presented sufficient evidence to raise a question of material fact regarding whether Cashman was exposed to asbestos from insulation Pacific originally installed.
The estate contends that there is a question of material fact regarding whether Pacific was in the chain of distribution for replacement insulation products. It points to Cashman's testimony that replacement parts for the generator "came through the Pacific Scientific maintenance company in Seattle." But this testimony was made in the context of discussing the generator's "mechanical inner workings," not insulation. The estate also notes that Cashman said Pacific supplied the replacement jack arches for the furnace at Keyport. But there is no evidence that the replacement jack arches contained asbestos. This evidence is insufficient to overcome summary judgment regarding Pacific's liability for replacement insulation.
The estate bases its claims against Pacific on Cashman's exposure to asbestos dust from two furnaces and one generator. Although Pacific acknowledges that its products were present at Cashman's workplace and that Cashman was exposed to insulation while working with those products, Pacific responds that the estate did not meet its burden to produce sufficient admissible evidence from which a jury could reasonably conclude that Cashman was exposed to a Pacific product that contained asbestos components when originally manufactured and sold.
Here, the estate contends that Cashman's perpetuation deposition testimony provided direct evidence that the furnaces and generator he worked on contained asbestos. Cashman testified that he worked on three Pacific products — a box furnace at PSHT, an endothermic gas generator at PSHT, and a box furnace at Keyport. He claimed that the furnaces were insulated with asbestos-containing firebrick, block insulation, door gaskets, and packing material. He also asserted that the generator at PSHT included asbestos block insulation. As part of his job duties, he repaired or replaced damaged insulation. This process generated dust, which he inhaled.
But Pacific responds that Cashman did not establish the necessary foundation that qualifies him to testify as an expert or lay witness about the presence of asbestos in the materials he encountered. Pacific also notes that the estate did not designate Cashman as an expert witness until more than a year after his death. As a result, he never prepared a report, signed a declaration, or submitted to an expert deposition.
On February 9, 2007, the estate designated him as an expert witness regarding the asbestos content of the Pacific products he worked on "based upon his training, experience, and knowledge."
Pacific does not argue, explain, or cite authority regarding the legal significance of Cashman's untimely designation as an expert. "Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration." Palmer v. Jensen, 81 Wn. App. 148, 153, 913 P.2d 413 (1996).
Cashman responds that Pacific never objected or sought a ruling from the trial court challenging Cashman's "competence to testify to asbestos content in furnace door gaskets." Respondent's Br. at 31. Our review of the record confirms that Pacific did not move to preclude, object to, or seek a trial court ruling on the admissibility of Cashman's deposition testimony. And Pacific's assertion that its "form" objections during Cashman's deposition sufficiently preserved the evidentiary challenge for review fails. As Cashman correctly notes,
The Supreme Court of Washington has stated that it "will not consider objections to the evidence unless they have been brought to the attention of the trial court, and that court given an opportunity to rule thereon; nor will [it] consider grounds not presented to the trial court." Symes v. Teagle, 67 Wn.2d 867, 873, 410 P.2d 594 (1966). Pacific Scientific has, therefore, waived this challenge to the evidence. See, e.g., White v. Kent Medical Center, Inc., P.S., 61 Wash. App. 163, 172 n. 3, 810 P.2d 4 (1991).
Appellant's Corrected Reply Br. at 10.
In Parkin v. Colocousis, 53 Wn. App. 649, 769 P.2d 326 (1989), a medical malpractice lawsuit, we addressed a similar issue. There, we considered whether Parkin waived any error to the doctor's affidavit in support of summary judgment because she did not specifically argue the sufficiency of the affidavit to the trial court. We reasoned,
Respondent contends that Parkin waived error with regard to the sufficiency of the Colocousis affidavit by not arguing her position to the trial court. The trial court was fully apprised of the alleged deficiencies as they related to issues of informed consent and res ipsa loquitur. However, it appears that Parkin did not argue to the trial court that Colocousis's affidavit was conclusory and insufficient to support a summary judgment on medical malpractice theories.
Generally, in order to preserve for review a claim that an affidavit is defective, a party must register an objection which specifies the deficiency or must move to strike the affidavit before the trial court's entry of summary judgment. Smith v. Showalter, 47 Wash. App. 245, 248, 734 P.2d 928 (1987). This rule clearly applies to objections that the affidavits are not made on personal knowledge, do not set forth facts that would be admissible in evidence, or do not show affirmatively that the affiant is competent to testify to the matters stated therein. CR 56(e); Smith v. Showalter, supra; Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 352, 588 P.2d 1346 (1979).
Parkin, 53 Wn. App. at 652.
Had Pacific moved the trial court to preclude Cashman's deposition testimony, we would apply a de novo standard of review to the trial court's ruling as an evidentiary ruling made in conjunction with the summary judgment order. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). But that standard of review does not alter the rule that an evidentiary objection must be made in the trial court to preserve the issue for appeal. Rather, under the special rule regarding review of summary judgment proceedings, "the appellate court will consider only evidence and issues called to the attention of the trial court." RAP 9.12. "It is our duty to review evidentiary rulings made by the trial court; we do not ourselves make evidentiary rulings." Jacob's Meadow Owners Ass'n v. Plateau 44 II, LLC, 139 Wn. App. 743, 756, 162 P.3d 1153 (2007). Here, the record does not show, and Pacific does not contend, that it moved to preclude Cashman's deposition testimony or otherwise objected to its consideration by the trial court. The failure to object in the trial court means the admissibility of the deposition testimony is not properly before us.
Our foregoing discussion also resolves Pacific's challenge to the expert testimony of Cashman's industrial hygienist, Steven Paskal. Like Cashman's testimony, the record does not show, and Pacific does not contend, that it moved to preclude Paskal's testimony or otherwise objected to its consideration by the trial court. Because the trial court considered the Cashman and Paskal testimony and made no ruling on its admissibility, the evidence is properly before us.
We reject Pacific's remaining arguments, including its reliance on our opinion in Cameron v. Murray, 151 Wn. App. 646, 214 P.3d 150 (2009) on the question of whether Pacific properly objected to the disputed testimony. Whether styled as a "motion to strike" or "objection to the admissibility of evidence," Pacific did neither below.
We also note that the order granting summary judgment does not "*designate the documents and other evidence called to the attention of the trial court before the order on summary judgment was entered." CR 56(h). And the order contains no notation that purports to resolve admissibility of any disputed evidence.
Viewing all the evidence (including the Cashman and Paskal testimony) and reasonable inferences in the light most favorable to the estate, we conclude the trial court improperly granted summary judgment dismissal because material issues of fact exist.
Spoliation
Pacific argues that the trial court erred in denying its renewed motion to dismiss the estate's lawsuit as a sanction for spoliation of evidence after Cashman's body was cremated without an autopsy. "We review a trial court's decisions regarding sanctions for discovery violations for abuse of discretion." Homeworks Constr., Inc. v. Wells, 133 Wn. App. 892, 898, 138 P.3d 654 (2006). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
On May 3, 2007, we denied discretionary review of an order denying a motion to dismiss for spoliation brought by defendants who, like Pacific, argued that an autopsy would have yielded important information about Cashman's mesothelioma diagnosis.
In addition to arguing that the trial court abused its discretion, Pacific contends that the trial court's denial of its motion to dismiss was also an error of law. Pacific cites no cases — from Washington or any other jurisdiction — suggesting that the standard of review in spoliation cases is anything other than abuse of discretion.
And the trial court has considerable discretion in specifying the consequences of spoliation and will not be reversed except for an abuse of discretion. Henderson v. Tyrrell, 80 Wn. App. 592, 604, 910 P.2d 522 (1996)
Spoliation is "usually intended as a term of art, referring to the legal conclusion that a party's destruction of evidence was in bad faith or under other circumstances such that admissibility and the other negative consequences . . . should follow." 5 Karl B. Tegland, Washington Practice: Evidence § 402.6, at 286 (5th ed. 2007). But "spoliation encompasses a broad range of acts beyond those that are purely intentional or done in bad faith." Homeworks, 133 Wn. App. 900 (citing Henderson, 80 Wn. App. at 605). "The problem historically has been treated as an evidentiary matter; the common remedy is an inference 'that the adversary's conduct may be considered generally as tending to corroborate the proponent's case and to discredit that of the adversary.'" Henderson, 80 Wn. App. at 605 (quoting 2 John W. Strong, McCormick on Evidence § 265, at 192 (4th ed. 1992)). "To remedy spoliation the court may apply a rebuttable presumption, which shifts the burden of proof to a party who destroys or alters important evidence." Marshall v. Bally's Pacwest, Inc., 94 Wn. App. 372, 972 P.2d 475 (1999). "[T]he more severe sanctions, such as entry of default judgment, are reserved for cases in which the violation is particularly deplorable." James F. Thompson, Spoliation of Evidence: A Troubling New Tort, 37 U. Kan. L. Rev. 563, 573 (1989).
In determining whether spoliation requires a sanction, the trial court weighs (1) the potential importance or relevance of the missing evidence and (2) the culpability or fault of the adverse party. "After weighing these two general factors, the trial court uses its discretion to craft an appropriate sanction." Homeworks, 133 Wn. App. at 899. "Whether the missing evidence is important or relevant obviously depends on the particular circumstances of the case. Another important consideration is whether the loss or destruction of the evidence has resulted in an investigative advantage for one party over another, or whether the adverse party was afforded an adequate opportunity to examine the evidence." Henderson, 80 Wn. App. at 607 (citations omitted). "[I]n determining the adverse party's culpability, the trial court can consider the party's bad faith, whether that party had a duty to preserve the evidence, and whether the party knew that the evidence was important to the pending litigation." Homeworks, 133 Wn. App. at 900.
The issue here is whether the trial court abused its discretion in imposing a remedy that fell short of dismissal. Pacific, noting that a common remedy for spoliation is to shift the burden of proof, argues that dismissal was required because the estate already bore the burden of proving causation. Therefore, it would make no sense to shift the burden of proof on causation issues to Pacific as a remedy for spoliation. But the trial court's October 24, 2007 letter ruling makes clear — the court imposed no burden-shifting remedy. Moreover, Pacific's view of the trial court's discretion to fashion an appropriate remedy is overly narrow. The trial court may consider all of the circumstances to craft a sanction that is appropriate. And dismissal should be reserved only for the most egregious circumstances.
After defendants deposed two of Cashman's attorneys and redeposed the personal representative, the trial court held a lengthy hearing on the spoliation issue. In its letter ruling, the trial court reasoned that dismissal was too severe a remedy for the spoliation that occurred because (1) Pacific did not establish that the spoliation was intentional rather than negligent and (2) neither party had access to samples of Cashman's lung tissue. The court then acknowledged that the defendants were denied an opportunity to examine evidence that the style order was designed to address. Accordingly, it proposed a remedy that would permit Pacific to introduce an expert witness to present evidence on the possibility of what might have been found in the autopsy rather than adhering to the probability standard of reasonable medical certainty.
Counsel:
I have considered the arguments made concerning an appropriate sanction for the spoliation of evidence in this case.
I am denying the motion to dismiss for two primary reasons: First, the defendants haven't established that the conduct was intentional rather than negligent, which doesn't affect the fact of spoliation but does significantly impact what is an appropriate sanction.
Second, this is not an instance where evidence was available to one side — in this case the plaintiff — which was then destroyed and no longer available to the other side. The plaintiff does not have any "advantage" with regard to evaluation of the physical evidence.
Nevertheless, while plaintiff has suggested that the defendants are in a better position without an autopsy than with one, based on what she argues is strong medical findings, the fact remains that defendants were denied an opportunity to examine evidence that the style order was designed to address.
The issue is, then, what remedy or sanction is properly ordered short of dismissal.
Plaintiff offered to stipulate to the types of fibers that might have been found in an autopsy. However, defendants argue that each has a different interest in what types of fibers might have been found, so that is not a satisfactory remedy.
I offer the following as a proposed sanction and will invite comments from the parties as to its viability:
Each defendant may call an expert witness to present evidence on the possibility of what might have been found in the autopsy, rather than adhering to the probability standard of reasonable medical certainty in proffering such testimony.
This would allow each defendant to independently challenge the findings of the plaintiffs witnesses and would not require agreement by all as to what might have been present had an autopsy been done.
In the same way that the defendants have presented their arguments to the court about the deficiencies in the evidence without an autopsy, they can make that argument to the jury based on their expert's testimony.
I am willing to hear comments from the parties about this proposed sanction. I reiterate that I am not willing to dismiss the case and ask that defendants not re-address that motion. However, there may be issues with this approach that haven't occurred to me, and I will consider them if raised.
Please provide any comments by noon on October 26. (I will be on a short leave starting October 30 and would like to resolve this before I go.)
Letter Ruling (Oct. 24, 2007); Clerk's Papers, at 1785. Under these circumstances, the trial court's imposition of lesser sanctions and refusal to dismiss the lawsuit for spoliation was tenable.
In sum, because there are material issues of fact and the trial court properly exercised its discretion in denying Pacific's motion to dismiss for spoliation, we reverse the summary judgment dismissal.
We Concur: