Allen v. Asbestos Corp., Ltd.

157 P.3d 406
CourtCourt of Appeals of Washington
DecidedApril 16, 2007
Docket57723-9-I
StatusPublished
Cited by13 cases

This text of 157 P.3d 406 (Allen v. Asbestos Corp., Ltd.) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. Asbestos Corp., Ltd., 157 P.3d 406 (Wash. Ct. App. 2007).

Opinion

157 P.3d 406 (2007)

Gary D. ALLEN, Appellant,
v.
ASBESTOS CORP., LTD.; Crown Cork & Seal Company, Inc.; E.J. Bartells Settlement Trust; Garlock Sealing Technologies, LLC; Foster-Wheeler Energy Corporation; Metropolitan Life Insurance Company; Union Carbide Corp.; and Defendants,
Uniroyal, Inc., Respondent.

No. 57723-9-I.

Court of Appeals of Washington, Division 1.

February 12, 2007.
Ordered Published in Full April 16, 2007.

*408 Janet L. Rice, William Joel Rutzick, Schroeter Goldmark & Bender, Seattle, WA, for Appellant.

Chris Robert Youtz, Sirianni Youtz Meier & Spoonemore Seattle, WA, for Respondents.

COLEMAN, J.

¶ 1 Gary Allen sued Uniroyal, among others, claiming his exposure to asbestos dust from Uniroyal predecessor United States Rubber Company's asbestos-containing products caused his lung cancer. Uniroyal moved for summary judgment, alleging that Allen had insufficient evidence of causation, and the trial court granted the motion. Allen claims that the trial court erred in granting summary judgment because he raised an issue of material fact and the trial court should have admitted certain pieces of evidence that would have precluded summary judgment. We agree that, drawing all reasonable inferences in his favor as the nonmoving party, Allen presented sufficient evidence to raise a genuine issue of material fact as to whether Allen's father was exposed to Uniroyal products. Summary judgment was erroneously granted, and we therefore reverse and remand for trial.

FACTS

¶ 2 Allen sued Uniroyal, alleging that his lung cancer was caused by, inter alia, asbestos dust from a product manufactured by Uniroyal predecessor United States Rubber Company[1] that his father brought home from work on his clothes. Allen testified that his father worked at Puget Sound Naval Shipyard for 25 years as an insulator. Allen submitted sales records showing that the shipyard purchased Uniroyal products containing asbestos during the time that his father was employed there.

¶ 3 Uniroyal moved to strike many of Allen's exhibits, and the trial court granted the motion in part. Uniroyal also moved for summary judgment, arguing that Allen had not raised a genuine issue of material fact because he had not put forward sufficient evidence that his father had ever been exposed to Uniroyal products. The trial court granted summary judgment, and Allen now appeals both the summary judgment order and the order granting in part Uniroyal's motion to strike.

STANDARDS OF REVIEW

¶ 4 When reviewing a summary judgment order, we engage in the same inquiry as the trial court.

We will affirm an order granting summary judgment only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In reviewing summary judgment orders, we consider supporting affidavits and other admissible evidence that is based on the affiant's personal knowledge. A party may not rely on mere allegations, denials, opinions, or conclusory statements but, rather must set forth specifics indicating material facts for trial.

Int'l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co., 122 Wash.App. 736, 744, 87 P.3d 774 (2004) (footnotes omitted). The party moving for summary judgment has the initial burden of establishing the absence of an issue of material fact. Young v. Key Pharmaceuticals, Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). If the moving party meets this burden, in order to withstand summary judgment, the nonmoving party must set forth specific facts establishing a genuine issue for trial. Young, 112 Wash.2d at 225-26, 770 P.2d 182. "The evidence and all reasonable inferences therefrom must still be examined in the light most favorable to the nonmoving party to determine if there are genuine issues of material fact for trial." Weatherbee v. Gustafson, 64 Wash.App. 128, 132, 822 P.2d 1257 (1992).

¶ 5 A trial court's evidentiary rulings, on the other hand, are reviewed for manifest abuse of discretion. Int'l Ultimate, *409 122 Wash.App. at 744, 87 P.3d 774. Although the trial court has discretion to rule on a motion to strike, a "court may not consider inadmissible evidence when ruling on a motion for summary judgment." Int'l Ultimate, 122 Wash.App. at 744, 87 P.3d 774.

ANALYSIS

Evidence of Allen's Father's Exposure to Uniroyal Products

¶ 6 Uniroyal moved for summary judgment on the grounds that Allen had offered insufficient evidence of his father's exposure to Uniroyal products. Allen argues that because he offered evidence showing that Uniroyal asbestos cloth was purchased by the shipyard, the trial court should have inferred that the cloth was thereby used at the shipyard. Allen considers this inference of exposure to be reasonable and argues that the trial court was required to resolve all reasonable inferences in his favor when considering Uniroyal's motion for summary judgment.

¶ 7 Asbestos plaintiffs in Washington may establish exposure to a defendant's product through circumstantial evidence. Lockwood v. AC & S, Inc., 109 Wash.2d 235, 744 P.2d 605 (1987). Lockwood established factors that a court should consider to determine whether sufficient evidence of causation exists: (1) plaintiff's proximity to the asbestos product when the exposure occurred; (2) the expanse of the work site where asbestos fibers were released; (3) the extent of time plaintiff was exposed to the product; (4) what types of asbestos products the plaintiff was exposed to; (5) how the plaintiff handled and used those products; (6) expert testimony on the effects of inhalation of asbestos on human health in general and the plaintiff in particular; and (7) evidence of any other substances that could have contributed to the plaintiff's disease (and expert testimony as to the combined effect of exposure to all possible sources of the disease).

¶ 8 The proximity and time factors can be satisfied if there is evidence that the plaintiff worked at a job site where asbestos products were used, particularly where there is expert testimony that asbestos fibers have the ability to drift over an entire job site. See, e.g., Berry v. Crown Cork & Seal Co., 103 Wash.App. 312, 324, 14 P.3d 789 (2000). In Berry, shipyard employees testified that they ordered the defendant's asbestos products for use at the shipyard, and the plaintiff's experts testified that asbestos fibers can drift over an entire shipyard such that anyone who worked anywhere at the shipyard is exposed if asbestos is used there. Berry, 103 Wash.App. at 324, 14 P.3d 789.

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Bluebook (online)
157 P.3d 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-asbestos-corp-ltd-washctapp-2007.