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December 2017

Gordon & Rees Southern California Team Wins Summary Judgment in Wrongful Death Asbestos Lawsuit Filed By Heirs of Prominent Physics Professor

Southern California partner Roger Mansukhani, senior counsel Ian Williamson, and associates Danielle Vallone and Lyndsay Crenshaw recently won summary judgment in a potentially high-value wrongful death case for their client, a family-owned hardware store in Berkeley, California. The decedent, a prominent physics professor from the University of California, Berkeley, passed away from mesothelioma.  The plaintiffs, decedent’s son and widow, alleged that the decedent had been exposed to asbestos from the use of an asbestos-containing joint compound purchased from the hardware store decades ago for home remodel projects.  As a result, the plaintiffs alleged the decedent’s mesothelioma was caused in part by the client’s product.  The plaintiffs’ allegations against the client included strict products liability, negligence, fraud, and conspiracy to defraud.

Gordon & Rees's attorneys propounded comprehensive discovery to the plaintiffs regarding the alleged asbestos-containing joint compound purchased by the decedent.  Despite their lengthy responses, the plaintiffs failed to provide any specific information identifying the alleged joint compound product sold by the client.  The plaintiffs also failed to provide any information demonstrating that the “particular product” sold by the client contained asbestos. The client stated in written discovery and deposition testimony that it had no records of selling an asbestos-containing joint compound to the decedent, and all other former employees with potential knowledge were deceased.

Based on the lack of product identification evidence, Gordon & Rees's attorneys filed its motion for summary judgment.  The moving papers argued that the plaintiffs did not have sufficient evidence to prove that the decedent worked with or was exposed to an asbestos-containing joint compound sold by the client; therefore, the plaintiffs were unable to prove that the client caused the decedent’s mesothelioma, a fundamental element of their allegations.  In their opposition papers, the plaintiffs argued that the client had failed to prove that the plaintiffs could not reasonably obtain the needed evidence from the client’s former employees, despite evidence to the contrary.  The plaintiffs also attempted to introduce, for the first time, a declaration signed by the decedent in the days before his death.  The plaintiffs argued that the hearsay document was a “dying declaration,” and as such, was admissible to prove that the plaintiffs had sufficient product identification evidence to satisfy their burden. 

The court granted summary judgment in favor of Gordon & Rees’s client.  The court found that the client had satisfied its burden of proof that the plaintiffs were unable to prove causation through the use of the plaintiffs’ “factually devoid” responses to discovery.  The court reasoned that without any identification of a specific asbestos-containing product supplied by the client, the plaintiffs’ allegations amounted to little more than speculation.  Further, the court rejected the plaintiffs’ contention concerning the potential knowledge of the client’s employees, finding that it was an incorrect attempt to require the defendant to negate causation in its moving papers.  In addition, the court found that even without ruling on the admissibility of the decedent’s declaration, the declaration failed to provide sufficient evidence to meet their burden.  The plaintiffs did not contest the court’s ruling.

Roger M. Mansukhani
Ian G. Williamson