Casey v. Perini Corp.
206 Cal. App. 4th 1222
| Cal. Ct. App. | 2012Background
- Trial court granted summary judgment to Perini Corporation, dismissing the asbestos action against it.
- Patricia Casey and her deceased husband John Casey filed suit for personal injury and loss of consortium alleging Casey’s mesothelioma from occupational asbestos exposure.
- Casey worked as a plumber and pipefitter from 1962 to 2001; mesothelioma diagnosed January 2010; suit filed March 22, 2010 against Perini and others.
- Plaintiffs alleged Perini, as general contractor at Civic Auditorium, Alcoa Building, and Hyatt Regency Hotel, oversaw activities that exposed Casey to asbestos.
- Casey’s deposition showed uncertainty about which products contained asbestos and whether Perini’s activities disturbed asbestos-containing materials; no specific product identifications were made.
- Perini moved for summary judgment contending plaintiffs had no admissible evidence of exposure; court later excluded Cohen declaration and granted judgment for Perini.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Perini meet its initial burden of production? | Casey | Perini | Yes; Perini met initial burden to show lack of evidence of exposure |
| Was Cohen’s expert declaration properly excluded for lack of foundation? | Casey | Perini | Yes; Cohen’s reliance on OSHA presumption lacked foundation |
| Did plaintiffs present sufficient evidence of exposure to create a triable issue? | Casey | Perini | No; evidence did not connect Perini to actually exposed asbestos-containing materials |
| Were the OSHA regulations inappropriately applied to tort exposure in this case? | Casey | Perini | Not resolved here; court left that question for another day |
Key Cases Cited
- Andrews v. Foster Wheeler LLC, 138 Cal.App.4th 96 (Cal. App. 4th Dist. 2006) (reaffirms need for evidentiary foundation in expert opinion on causation)
- McGonnell v. Kaiser Gypsum Co., 98 Cal.App.4th 1098 (Cal. App. 4th Dist. 2002) (expert opinions must be grounded in facts; speculative opinions improper)
- Lineaweaver v. Plant Insulation Co., 31 Cal.App.4th 1409 (Cal. App. 4th Dist. 1995) (circumstantial evidence required to show defendant’s product presence at site)
- Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953 (Cal. 1997) (two-part causation test: threshold exposure and substantial factor in injury)
- Bushling v. Fremont Medical Center, 117 Cal.App.4th 493 (Cal. App. 4th Dist. 2004) (expert opinion must provide reasoned explanation; foundation matters)
- Powell v. Kleinman, 151 Cal.App.4th 112 (Cal. App. 4th Dist. 2007) (explains admissibility based on reasoned basis and relied-upon facts)
- Scheiding v. Dinwiddie Construction Co., 69 Cal.App.4th 64 (Cal. App. 4th Dist. 1999) (standard for summary judgment burden shifting)