Jesus Payan and Francisca Payan v. CBS Corporation, et al.

Date: September 6, 2016
Court: Superior Court of California, County of Los Angeles

Christopher Collier and Edward Ulloa were granted summary judgment on behalf of Cytec Fiberite (formerly owned by Celanese, for Narmco adhesives), in a preferential living mesothelioma case in the Superior Court of California, County of Los Angeles. Plaintiffs were represented by Laurel Simes, Shannon Patel and Heather Osuna of the Levin Simes firm. 

Cytec’s summary judgment motion was based on lack of product identification and causation grounds. Plaintiff and two co-worker witnesses failed to identify Narmco products.  Plaintiff responded with documentation that proved Narmco sold asbestos containing adhesives in California during the relevant time frame, but had no evidence tying any of the products to Payan. Plaintiff moved to continue the Motion to allow them to depose Cytec’s corporate representative. Fourteen days after discovery cutoff, Plaintiffs produced declarations from four co-workers who had not been disclosed in discovery and had not been offered for deposition. These declarations sought to cure the identification problem by naming Narmco at the work site and stating that all parts moved through Payan’s area, therefore exposing him to Narmco products. 

At the hearing, Ed argued that the late inclusion of these witnesses in a case that Plaintiffs requested preference was a violation of our client’s due process rights, and that the submission of the supplemental opposition violated the court’s scheduling order. The court agreed on both bases, and disregarded Plaintiffs’ supplemental opposition and the declarations of the four witnesses. Based thereon, the court granted Cytec’s motion. 

This was a significant ruling, in light of four other defendants who argued the merits of the declarations and did not address the due process violations nor object to the declarations on that basis. Cytec’s was the sole contested summary judgment motion granted on the merits.