Summary
In Taylor, the appellate court reversed the trial court's decision granting summary judgment in favor of Union Carbide, rejecting Union Carbide's claim that there was no evidence that the plaintiff was specifically exposed to its asbestos.
Summary of this case from Estate of Bier v. American BiltriteOpinion
No. 37317-3-II.
November 4, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 07-2-04511-8, Lisa R. Worswick, J., entered January 11, 2008.
Reversed and remanded by unpublished opinion per Bridgewater, J., concurred in by Houghton and Armstrong, JJ.
UNPUBLISHED OPINION.
David Roy Taylor suffers from mesothelioma, a disease caused by exposure to asbestos. Taylor worked as an electrician on construction projects in Tacoma in 1972-1973, and contends that he was exposed to Union Carbide asbestos in joint compound products used in his work area at his jobsites. The trial court granted Union Carbide's motion for summary judgment. We hold that Taylor presented sufficient evidence to raise a genuine issue of material fact as to whether he was exposed to Union Carbide asbestos at the Tacoma jobsites. Accordingly, we reverse the trial court's grant of summary judgment in favor of Union Carbide and remand the case for trial.
FACTS
David Taylor is a Tacoma resident in his mid-60s who has stage-III mesothelioma, a terminal lung cancer that is caused by asbestos exposure. During his long career as an electrician, Taylor was exposed to a number of products, including joint compound products, which allegedly contained asbestos. The record contains expert medical testimony and affidavits that Taylor's occupational exposure to asbestos-containing products caused his mesothelioma to a high degree of medical certainty. The medical opinion evidence concludes that Taylor's exposure to joint compound dust containing asbestos was a substantial contributing factor in the development of his mesothelioma. The present case centers on Taylor's allegation that he was exposed to asbestos while installing electrical wiring on construction sites in Tacoma during 1972-1973. He testified at deposition that as he worked, drywall workers often mixed, applied, and sanded joint compound while installing and finishing walls in his work area. This produced dust that he inhaled.
The record indicates that Taylor was exposed to asbestos when he served in the Navy in 1961-1964, when he worked as a laborer and maintenance electrician at Fort Lewis in 1965-1966 (and 1972), when he worked as a shipyard electrician in 1966-1969, when he delivered supplies to electricians in the field and cut asbestos piping in a shop in 1968, when he worked as an electrician in construction projects in Tacoma in 1970-1973, when he worked as a construction electrician at the Centralia Steam Plant in 1971 and 1973-1974, when he periodically worked as an electrician in pulp and paper mills in the 1970s, and when he worked at Tacoma Dock in 1979.
Taylor specifically identified Hamilton Red Dot as one of the joint compounds to which he was exposed during his work in the Tacoma area in 1972-1973. He described how the dry product came in 25-pound bags, and drywall workers used a drill motor with a large auger to mix the product. He also described how after the joint compound was applied to the taped joints in the walls and dried, the drywall workers would sand the compound smooth, creating dust at the worksite that he inhaled.
Taylor also testified that during the same 1972-1973 time period, he was exposed to Georgia-Pacific Ready Mix joint compound while working on a construction project at Foss High School in Tacoma. This joint compound came premixed in five-gallon buckets and drywall workers applied the product directly to taped wall joints. After it dried, the Ready Mix joint compound was sanded smooth, creating dust that Taylor inhaled.
Taylor retired in 2000. When he sought medical treatment for a chest cold and shortness of breath in late 2006, tests ultimately revealed his incurable mesothelioma.
Taylor and his wife filed their summons and complaint against multiple defendants on January 19, 2007, claiming that his mesothelioma was caused by workplace exposure to defendants' asbestos products and that the defendants were liable on negligence and strict products liability grounds. On April 3, 2007, the Taylors amended their complaint to add Union Carbide as a defendant. On November 15, 2007, Union Carbide moved for summary judgment, contending that there was "no evidence" that David Taylor had come into contact with "asbestos fiber supplied by [Union Carbide]." CP at 164. On December 4, 2007, the Taylors opposed the motion as part of an omnibus opposition to the multiple motions for summary judgment filed by Union Carbide and the other defendants. On December 11, 2007, Union Carbide filed a reply brief in support of summary judgment reiterating that "[Union Carbide] was never an exclusive or primary supplier of asbestos fiber to any of the joint compound manufacturers at issue in this case, during the years in which plaintiff was allegedly exposed to these products." CP at 3398 (emphasis omitted). Union Carbide argued that it was entitled to summary judgment as a matter of law because "[Taylor] cannot show that [he] was exposed to any asbestos fiber supplied by Union Carbide." CP at 3398.
The original defendants listed in Taylor's complaint included Saberhagen Holdings, Inc., as successor to Tacoma Asbestos Company and The Brower Company; Allis-Chalmers Product Liability Trust; Bartells Asbestos Settlement Trust; Bondex International, Inc.; Carrier Corporation; CBS Corporation, f/k/a Viacom, Inc., successor by merger to CBS Corporation, f/k/a/Westinghouse Electric Corporation; Certainteed Corporation; C.H. Murphy/Clark-Ullman, Inc.; Foster Wheeler Energy Corporation; Fraser's Boiler Service, Inc.; General Electric Company; Georgia-Pacific Corporation; IMO Industries, Inc., successor to Delaval Industries; Ingersoll-Rand Company; Hamilton Materials, Inc.; Hanson Permanente Cement, Inc., f/k/a Kaiser Cement Corporation; Kaiser Gypsum Company, Inc.; Harris Electric Inc.; Lone Star Industries, Inc., individually and as successor-in-interest to Pioneer Sand Gravel Company; Metalclad Insulation Corporation; Metropolitan Life Insurance Company; P-G Industries, Inc., as successor in interest to Pryor Giggey Co., Inc.; Rapid American Corporation; Sequoia Ventures, Inc., f/k/a and as successor in interest to Bechtel Corporation, Bechtel, Inc., Bechtel McCone Company, and Bechtel Group, Inc.; and Warren Pumps, Inc., individually and as successor in interest to Quimby Pump Company. Taylor was later permitted to add more defendants, including Zurn Industries, Inc.; Cleaver Brooks, a division of Aqua-Chem, Inc.; American Standard, Inc., individually and as parent and alter ego of American Boiler Corp., Westinghouse Air Brake Company, and Kewanee Boiler Company, a division of American Radiator Standard Sanitary Company; A.O. Smith Corporation; Babcock Borsig Power, Inc., f/k/a D.B. Riley, Inc. (f/k/a Riley Stoker Corp.); Union Carbide Corporation; and T.H. Agriculture Nutrition Company, individually and as successor-in-interest to Thompson-Hayward Chemical Co.
On December 14, 2007, following oral argument, the superior court denied all of the defendants' summary judgment motions except Union Carbide's, which it granted. The other defendants settled with the Taylors thereafter. On December 21, 2007, the Taylors moved for reconsideration of the Union Carbide summary judgment. The superior court denied the motion on January 14, 2008. The Taylors timely appealed on February 6, 2008. The Taylors (hereinafter "Taylor") moved for accelerated review, which this court granted on June 11, 2008.
Although the parties agree that all of the other defendants have settled with the Taylors, neither party points to verification of that fact in the record.
ANALYSIS Standard of Review
When reviewing an order granting summary judgment, we engage in the same inquiry as the trial court. Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 324-25, 971 P.2d 500 (1999). We must consider the facts and all reasonable inference from those facts in the light most favorable to the nonmoving party. Soproni, 137 Wn.2d at 325. We "must reverse summary judgment if the evidence could lead reasonable persons to reach more than one conclusion." Soproni, 137 Wn.2d at 325. On the other hand, we must affirm if there is no genuine issue as to any material fact and the moving party is entitled to judgment as matter of law. Soproni, 137 Wn.2d at 325. CR 56(c).
Taylor need only show circumstantial evidence of his exposure to Union Carbide asbestos. See Lockwood v. AC S, Inc., 109 Wn.2d 235, 246-47, 744 P.2d 605 (1987). "[I]nstead of personally identifying the manufacturers of asbestos products to which he was exposed, a plaintiff may rely on the testimony of witnesses who identify manufacturers of asbestos products which were then present at his workplace." Lockwood, 109 Wn.2d at 246-47. See also Berry v. Crown Cork Seal Co., 103 Wn. App. 312, 324, 14 P.3d 789 (2000), review denied, 143 Wn.2d 1015 (2001); Allen v. Asbestos Corp., 138 Wn. App. 564, 571, 157 P.3d 406 (2007), review denied, 162 Wn.2d 1022 (2008).
Moreover, Taylor need not show that only Union Carbide asbestos was used in Hamilton Red Dot and Georgia-Pacific Ready Mix joint compounds. See Berry, 103 Wn. App. at 325 (the extent to which the defendant supplied the products as compared with other distributors is irrelevant for purposes of summary judgment). Taylor need only show that exposure to Union Carbide asbestos was a substantial factor in his contraction of mesothelioma. Mavroudis v. Pittsburgh-Corning Corp., 86 Wn. App. 22, 32, 935 P.2d 684 (1997) (substantial factor test of causation applies in multi-supplier asbestos injury cases). "[W]here the evidence show[s] exposure to the defendant's product and an expert testifie[s] that all exposure to asbestos has a cumulative effect in contributing to the contraction of asbestosis, the jury could reasonably find that exposure to the defendant's product was a proximate cause." Mavroudis, 86 Wn. App. at 29 n. 3 (discussing and applying Lockwood). Accordingly, the "plaintiff need only establish that defendant's asbestos products were among those in the plaintiff's work environment." Mavroudis, 86 Wn. App. at 29 n. 5 (citing Lockwood, 109 Wn.2d at 245-48, for the stated proposition).
Hamilton Red Dot
Taylor contends that he presented sufficient evidence to raise a genuine issue of material fact as to whether Union Carbide asbestos was in the Hamilton Red Dot to which he was exposed on the jobsite in 1972-1973. We agree.
As noted, Taylor specifically identified Hamilton Red Dot as a joint compound to which he was exposed when working at Tacoma jobsites in 1972-1973. He also provided evidence that the Hamilton joint compound system, which included Red Dot, contained asbestos during this time period.
Taylor also supplied the deposition testimony of Derold Hefely, Hamilton's northwest (Washington and Oregon) sales representative from 1973. Hefely described Red Dot as a "preferred" product in the region and his "second biggest seller." CP at 1034-35. He also stated that all the Hamilton joint compound systems contained asbestos until about 1976.
Taylor also supplied the deposition testimony of Hamilton Materials Inc.'s president, Willis Hamilton, who testified that starting in the late 1960s, Hamilton "predominantly" used Union Carbide asbestos fiber in its joint compounds. CP at 2947. Willis Hamilton was vigorously questioned on this point and steadfastly maintained that Union Carbide asbestos was primarily used in the company's joint compounds. He described Hamilton's use of Union Carbide asbestos in its joint compounds as "[n]ear exclusive" during the 1970s. CP at 2969. He explained that because the company was always trying to improve the product, it would make a "test batch" of joint compound using a different asbestos fiber as new fibers became available. CP at 2969. Such samples would not be put into production, but would be tested by Hamilton Materials. Aside from such test batches, Hamilton's use of Union Carbide asbestos fiber was exclusive because "Union Carbide asbestos worked better than any other asbestos in the joint compounds." CP at 2971.
Willis Hamilton's deposition testimony was taken in December of 2003, in connection with a series of asbestos cases pending before several county superior courts in California. The 2003 deposition was specifically limited to the issue of identifying Hamilton Materials's asbestos suppliers. In the present case, the trial court denied Union Carbide's motion to strike this deposition testimony, rejecting the proffered argument that the testimony was inconsistent with Willis Hamilton's prior testimony from yet another asbestos case. Union Carbide has not sought review of that determination. Instead, it simply notes the alleged inconsistencies in its response, and urges this court to be cognizant of them. But such argument goes to the weight to be given the testimony, rather than its admissibility. As the trial court correctly ruled, the issue of Willis Hamilton's credibility is for the jury.
Additionally, Taylor provided corroborating evidence in the form of what are purportedly Hamilton Materials's accounts payable records that show entries for regular payments to Union Carbide during 1970 for "raw mat[erial]." See CP at 2079-81, 2083-88. Taylor also provided Hamilton Materials's 1998 answer to an interrogatory in another case indicating that "most of the chrysotile [asbestos]" used in its joint compound products "was purchased from Union Carbide." CP at 2918.
Union Carbide argues that Willis Hamilton's testimony is not supported by Union Carbide's invoices, which purportedly indicate that Union Carbide began regularly supplying Hamilton with asbestos in 1974. At best, this creates a disputed factual issue regarding when Union Carbide began supplying Hamilton with asbestos for use in its joint compounds. That factual dispute, being a proper subject for jury determination at trial, renders summary judgment on the matter improper.
Union Carbide also urges this court not to consider Hamilton Materials's 1998 response to interrogatories, alleging that it is inadmissible hearsay. But that document was presented to the trial court and argued at the summary judgment hearing without objection. Having failed to challenge the document's admissibility before the trial court, Union Carbide has waived the objection it now seeks to raise. See In re Marriage of Monaghan, 78 Wn. App. 918, 930, 899 P.2d 841 (1995) (failing to make appropriate objection to evidence argued to the trial court generally waives the issue on appeal). In any event, Willis Hamilton's deposition testimony alone is sufficient to raise a material fact issue rendering the trial court's grant of summary judgment to Union Carbide improper. Accordingly, considering the evidence in the light most favorable to Taylor, as we must, we hold that Taylor raised a material fact question as to whether the Hamilton Red Dot joint compound, to which he was exposed in 1972-1973, contained Union Carbide asbestos. The trial court erred in granting summary judgment to Union Carbide.
Georgia-Pacific Ready Mix
Taylor contends that he presented sufficient evidence to raise a genuine issue of material fact as to whether Union Carbide asbestos was in the Georgia-Pacific Ready Mix joint compound to which he was exposed on the jobsite in 1972-1973. We agree.
As noted, Taylor specifically identified Georgia-Pacific Ready Mix in five-gallon buckets as a joint compound used at the Foss High School construction project in 1972-1973. The evidence before the trial court indicated that the Ready Mix was applied, dried, and sanded, causing dust that Taylor inhaled at the jobsite.
In response to the defendants' summary judgment motion, Taylor offered the deposition testimony of C. William Lehnert, Georgia-Pacific's research and development manager. Lehnert's testimony can fairly be read to indicate that all of the general purpose Ready Mix packaged in five-gallon buckets that Georgia-Pacific made at its five plants around the country during the relevant time period (1972-1973) contained Union Carbide asbestos, which Lehnert identified by its brand names as "SG-210" or "Calidria." See CP at 3036-48; 3262-64. See also CP at 3453 (Georgia-Pacific introduced asbestos-free Ready Mix in 1976, which was sold in one-gallon containers). Moreover, the record indicates that Georgia-Pacific supplied the west coast from its nearest plant in Acme, Texas. See CP at 3521 (Deposition testimony of Oliver Burch, former Georgia-Pacific sales manager for the Gypsum Division, stating "Anything [referring to joint compound] that we sold on the west coast had to be shipped from Acme, Texas."). Lehnert's chart indicates that the Ready Mix manufactured at the Acme plant during the relevant time period "contained SG-210." CP at 3262.
Lehnert provided a handwritten chart listing products that Union Carbide's asbestos was incorporated into from 1969 through 1977 at Georgia-Pacific's five plants located at Acme, Texas; Akron, New York; Chicago, Illinois; Marietta, Georgia; and Milford, Virginia. The chart may be read to indicate that all plants used Union Carbide asbestos in the Ready Mix at issue here during the relevant time period.
Although Union Carbide argues in its briefing to this court ( see Br. of Resp't at 23) that the record indicates Georgia-Pacific Ready Mix was not shipped to the west coast from the Acme plant, Union Carbide's position in its motion for summary judgment was that "products manufactured at the Acme Texas plant were furnished to the West Coast." See CP at 167 (Defendant Union Carbide's motion for summary judgment at 8 n. 22).
As noted, for present purposes Taylor need only show that he was exposed to Union Carbide asbestos in his work environment. See Mavroudis, 86 Wn. App. at 29 n. 5 (citing Lockwood). That Taylor may also have been exposed to the asbestos of other manufacturers is irrelevant for purposes of summary judgment. See Berry, 103 Wn. App. at 325. The noted evidence presents a material fact question as to whether the Georgia-Pacific Ready Mix joint compound to which Taylor was exposed while working in the Tacoma area in 1972-1973 contained Union Carbide asbestos.
Union Carbide argues to this court, as it did to the trial court in reply to Taylor's offered evidence, that the Ready Mix to which Taylor was exposed was likely not manufactured by Georgia-Pacific, but was produced by the Kelly-Moore Paint Company and labeled as Georgia-Pacific Ready Mix under a rebranding agreement. Building upon this premise, Union Carbide relies on a brief excerpt from the deposition of Herbert Giffins, Kelly-Moore's president and CEO, discussing a letter that identifies Kelly-Moore's asbestos suppliers. The letter purportedly indicates that Union Carbide had supplied Kelly-Moore with "only 8 percent" of the company's asbestos needs. CP at 3479. Accordingly Union Carbide contends that because other companies supplied the vast majority of Kelly-Moore's asbestos needs, Taylor cannot prove that when he was exposed to a rebranded Kelly-Moore product, he was exposed to Union Carbide asbestos.
This argument does not assist Union Carbide, however. The time period to which the letter refers is not clear. Also, the stated percentages upon which Union Carbide relies appear in the record without much context, and thus can fairly be read to refer to the company's national asbestos needs. Moreover, there is evidence in the record that the rebranding agreement at issue terminated in 1971, before the relevant time period here. But more to the point, the record indicates that Kelly-Moore's San Carlos, California plant manufactured premix joint compound under the rebranding agreement and packaged it in Georgia-Pacific containers. All of the products manufactured at the Kelly-Moore facility that were placed in Georgia-Pacific containers contained asbestos. CP 3698 (deposition testimony of Douglas Merrill, Kelly-Moore's vice president of manufacturing). The record indicates that Union Carbide was the "prime source" of asbestos for the San Carlos plant through 1969. CP at 3630 (Giffins deposition). As Union Carbide correctly notes "a joint compound product used on a job site during [the 1972-1973] time frame was not necessarily manufactured in those years." Br. of Resp't at 29. Accordingly, even if Union Carbide is correct — that the Ready Mix to which Taylor was exposed at the Foss jobsite was actually manufactured by Kelly-Moore — under this record, a material fact question is presented regarding whether Taylor was exposed to Union Carbide asbestos.
Union Carbide contends that some rebranding continued despite the agreement's termination. Thus, this issue is disputed.
In sum, viewing the evidence in the light most favorable to Taylor, as we must, debatable issues exist in this case as to whether Taylor was exposed to Union Carbide asbestos when he inhaled dust from Hamilton Red Dot and Georgia-Pacific Ready Mix joint compounds on his work sites in Tacoma in 1972-1973. The trial court erred in granting Union Carbide summary judgment. Accordingly, we reverse and remand this case for trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., concur.