A California appellate court recently upheld the trial court’s granting of summary judgment in a secondary exposure asbestos case where Plaintiffs could offer no admissible evidence that decedent’s father worked around asbestos-containing materials. See Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018). The trial court excluded plaintiff’s testimony regarding his father’s work because he acknowledged he had no personal knowledge and also sustained defendant’s objections to an affidavit of decedent’s aunt who likewise had no personal knowledge of decedent’s father’s work.
Plaintiffs Sandra Foglia, Michael Foglia, and Annette Rackley, individually and on behalf of the estate of Ronald Foglia, appealed the summary judgment entered against them on their wrongful death claim against defendant Moore Dry Dock (“MDD”). Plaintiffs alleged that decedent developed mesothelioma based on a theory of take home exposure from decedent’s father (“Father”) who allegedly worked as an electrician at a shipyard operated by MDD. Defendants propounded comprehensive interrogatories, including specially prepared interrogatories, requesting that plaintiffs “state all facts” supporting their contention that decedent and Father’s alleged asbestos exposure was caused by MDD. At decedent’s deposition, he was asked about his father’s alleged employment at MDD and responded that his father and his aunt had told him that is where his father worked and he believed them.
MDD’s summary judgment theories were both that it owed no duty of care to decedent for secondary exposure and that plaintiffs did not have and could not obtain evidence of asbestos exposure to show decedent was exposed to asbestos from the clothing and person of Father because of Father’s employment at MDD from 1942 to 1945. The trial court rejected MDD’s claim that it owed no duty to decedent as a matter of law. Rather, the trial court found an employer could owe a duty of care to family members of employees to protect them from exposure to harmful substances encountered because of employment. The California Supreme Court in Kesner v. Superior Court, 1 Cal.5th 1132 (2016) also later reached this conclusion.
Regarding its second argument, while MDD did not dispute that Father had worked for MDD in the 1940s, MDD claimed that decedent, who would have been five years old when his father allegedly worked at MDD, only had a vague recollection that his father worked for MDD, but...
