Shiffer v. CBS Corp.
240 Cal. App. 4th 246
| Cal. Ct. App. | 2015Background
- James Shiffer worked at the Ginna power plant in Rochester, NY for several months in 1969 to train employees on Westinghouse turbine equipment; plaintiffs later sued CBS (successor to Westinghouse) alleging asbestos exposure caused his mesothelioma.
- Westinghouse sold and shipped a turbine generator set and asbestos-containing insulation (blanket, block, plastic) for the turbine and certain piping (cross-over and cross-under) in 1968; installation occurred through 1968–1969.
- Westinghouse field progress reports show insulating work occurred before and during Shiffer’s July–August 1969 presence; some major turbine insulation was completed before he arrived, though some piping/auxiliary insulation work continued.
- At deposition Shiffer testified the main turbine insulation and main steam lines were already installed when he arrived; in a later, abbreviated declaration he claimed generally to have observed insulators working in the turbine building and to have visited that area frequently.
- Plaintiffs’ experts opined (1) installation creates respirable asbestos dust and (2) Shiffer suffered hazardous bystander exposure; the trial court excluded portions of expert opinion as speculative or lacking foundation because experts did not consider Shiffer’s deposition and relied on incomplete facts.
- Trial court granted summary judgment for CBS (finding no competent evidence Shiffer was exposed to Westinghouse asbestos); motions for reconsideration and new trial were denied because the allegedly new evidence (1979 study and letter, and subsequent expert amplification) was available before the hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Shiffer raised a triable issue that he suffered bystander exposure to Westinghouse-supplied asbestos at Ginna | Shiffer observed insulators working in the turbine building while present there frequently; bystander exposure from installation was probable | No evidence Shiffer was present when Westinghouse-supplied turbine/cross-over/cross-under insulation was being installed; deposition shows main insulation already in place | No triable issue; summary judgment for CBS affirmed |
| Whether expert opinions established causation from Westinghouse asbestos | Experts opined installation generated hazardous dust and that Shiffer’s presence caused substantial exposure | Experts lacked foundation because they did not consider Shiffer’s deposition and assumed facts unsupported by record | Expert opinions excluded or insufficient; causation not established |
| Whether an inference can be drawn that Shiffer was present during insulation of Westinghouse components | Plaintiffs urged inference from timing of progress reports and Shiffer’s presence | Defendant argued such an inference is speculative and not more likely than its contrary | Court held inference would be speculative/equipoise; not permissible |
| Whether post-judgment expert supplementation based on 1979 documents and deposition testimony justified reconsideration or new trial | Plaintiffs argued re-entrainment theory based on 1979 study/letter and deposition testimony was new and material | Defendant argued those materials were produced pre-hearing and plaintiffs failed to timely use them | Denial of reconsideration/new trial affirmed; evidence was not new and could have been presented earlier |
Key Cases Cited
- McGonnell v. Kaiser Gypsum Co., Inc., 98 Cal.App.4th 1098 (establishes exposure is threshold issue in asbestos cases)
- Rutherford v. Owens–Illinois, Inc., 16 Cal.4th 953 (plaintiff must prove exposure was a substantial contributing factor in reasonable medical probability)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (summary judgment standard; cannot rely on speculative or equally balanced inferences)
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (expert opinion must be based on adequate facts and reasoning)
- Whitmire v. Ingersoll–Rand Co., 184 Cal.App.4th 1078 (factors relevant to asbestos causation include frequency, regularity, and proximity of exposure)