The California Court of Appeal Recently Affirmed that "Close" Is Not Close Enough When it Comes to Evidence Proving Only Possibilities of Asbestos ExposureSeptember 21, 2015 – Article
James Shiffer, et al. v. CBS Corporation(2015) 2015 WL 5244659
First Appellate District, September 8, 2015
In the September 2015 case Shiffer v. CBS Corporation(2015) the Court of Appeal again addressed the issue of causation evidence possibility versus probability on summary judgment and sided with the defendant, CBS, whose predecessor Westinghouse was alleged to have caused plaintiff James Shiffer's asbestos exposure.
Mr. Shiffer and his wife sued a number of companies alleging that those companies caused Mr. Shiffer to be exposed to asbestos which, in turn, caused him to develop mesothelioma. The undisputed evidence showed that during the summer of 1969 Westinghouse supplied a turbine and appurtenant asbestos-containing insulation for installation at a power plant in upstate New York. Mr. Shiffer, a nuclear engineer with Pacific Gas & Electric, was sent this power plant in the summer of 1969 to train plant employees on the workings of the Westinghouse equipment being installed.
Westinghouse's own records and corporate witness confirmed that their turbine and asbestos-containing insulation was installed on specific equipment and pipe runs in the turbine room of the power plant. At deposition, Mr. Shiffer testified that he "frequently" passed through turbine room at the power plant that summer. He testified that much of the insulation was installed before he arrived on site and described in some detail what specific equipment and lines of pipe had already been insulated before he arrived. The only insulation he observed being installed was on "drains and smaller auxiliary lines." Westinghouse documents showed ongoing insulation occurring during July and August on various lines and equipment, but not on the "drains and smaller auxiliary lines" identified by Mr. Shiffer.
CBS brought a motion for summary judgment which argued that plaintiff had failed to produce evidence of asbestos exposure from Westinghouse products. In response to CBS's motion, Mr. Shiffer authored a declaration that actually backed away from the specific testimony he gave about the auxiliary lines, stating broadly that "insulators [were] insulating piping in the turbine building." The Shiffers also submitted expert declarations stating how this work "created magnitudes of asbestos-containing dust" in Mr. Shiffer's presence, exposing him to "hazardous" levels of asbestos, resulting a "substantial contributing factor" in the development of his mesothelioma.
So how does a defendant confront a mountain of evidence that puts a plaintiff in the same room as the defendant's asbestos-containing products when (a) there are documents and even the defendant's own corporate witness admitting their asbestos-containing products were there, and (b) the plaintiff has multiple experts lined up to show that the plaintiff was substantially exposed to hazardous levels of the defendant's asbestos-containing products? The answer is to aim at the foundation.
APPELLATE COURT'S TAKE
The trial court granted CBS's motion, and plaintiffs appealed. The appellate court did a fresh review of the matter, then confirmed the granting of the motion.
The Shiffer court stated that "fundamental evidentiary shortcomings" demonstrated that Mr. Shiffer could not create a triable question of fact on the issue of causation because he could not elevate his evidence against CBS above level of possibility where he is required to provide proof evincing probability.
Plaintiffs had Mr. Shiffer's own testimony combined with Westinghouse's documentary and testimonial evidence putting their asbestos-containing products in the same room as Mr. Shiffer. Plaintiffs also lined up experts providing evidence that it was those Westinghouse products which contributed to Mr. Shiffer's development of mesothelioma. However, at the most basic level, there was a gap in the evidence: There was nothing showing that it was anything more than possible that workers were installing the Westinghouse insulation in Mr. Shiffer's presence.
The court noted that Mr. Shiffer's testimony about the specific lines he saw being insulated at the plant were not the same as those described by the Westinghouse documents. The court was not impressed with Mr. Shiffer's subsequent declaration which sought to be more vague in its description of the insulation work. As the Court of Appeal put it, the plaintiff "had a quantum of knowledge" regarding the power generation system that only highlighted his failure to put the insulation he saw being installed on any line that was insulated with Westinghouse product.
The court noted the key initial point: "A threshold issue in asbestos litigation is exposure to the defendant's product. . . . If there has been no exposure, there is no causation." The Shiffer court stated that Mr. Shiffer's "[m]ere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure." There was no evidence that Mr. Shiffer was in the turbine room during the installation of Westinghouse insulation.
While the Shiffers presented some evidence suggesting that it was possible to infer that Mr. Shiffer was in the same room, that evidence was "only as likely . . . or even less likely" than competing inferences. The court stated that were the competing inferences are in equipoise, the court must find for the defense. A jury cannot reasonably find something more probable than not when the evidence is equally balanced.
Without being able match up the insulation exposure evidence, the court was able to dispatch the experts' declarations: "An expert's opinion is only as good as the facts on which it is built." In other words, the Shiffers' experts lacked the evidentiary foundation to sustain the conclusions drawn by those experts.
ANALYSIS and COMMENT
The Shifferdecision is not notable because it sets out new precedent. Rather, Shifferis a clean, concise reminder of the evidentiary standards required to prove causation.
Shifferis a great case for illustrating good deposition practice. While CBS was no doubt fortunate that their documents did not mesh with Mr. Shiffer's testimony, counsel should be mindful at depositions to generally gather as many details as possible. The testimony obtained about the specific lines Mr. Shiffer saw being insulated proved critical to CBS's ability to show a lack of overlap in the evidence.
It is also a reminder to examining counsel at deposition to close the windows and shut the doors that would allow a witness to come back later with a "clarifying" declaration expanding the evidence. Mr. Shiffer attempted to come back with a more generalized declaration in this case in an attempt to implicate Westinghouse, but the court was dubious given plaintiff's more precise testimony at deposition and his specialized knowledge in the turbine system at issue.
Finally, Shiffer also should remind attorneys and courts that evidence allowing for only the inference of the possibility of a triable issue is not enough to establish causation.
 First Appellate District
 Quoting McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103.)