Viale v. Air & Liquid Systems Corp

Background

Debbie L. Viale and Amber Jacobs, identified as Ronald Viale's wife and daughter, sued Foster Wheeler LLC and other defendants. The complaint alleged that Ronald Viale used, handled, or was otherwise exposed to asbestos-containing products provided or manufactured by the defendants; that he developed mesothelioma as a result; and that he died in July 2018. Against Foster Wheeler, plaintiffs asserted negligence, strict liability, false representation, and intentional tort claims.

Motion and Evidence

Foster Wheeler moved for summary judgment, a procedure that requires judgment when the evidence shows there is no genuine dispute over a fact important to the claim. Foster Wheeler argued that plaintiffs lacked evidence showing Ronald Viale was exposed to an asbestos-containing product manufactured, sold, or supplied by Foster Wheeler.

The court found Foster Wheeler had met its initial burden by submitting plaintiffs' interrogatory responses, deposition excerpts from identified witnesses and two of Viale's coworkers, and two reports from plaintiffs' designated experts. Plaintiffs then had to identify specific evidence showing a genuine issue for trial.

Plaintiffs relied particularly on testimony from Benjamin Upton and Bernard Upton and on an expert report by Charles Ay. Benjamin Upton said he believed that a boiler demolished while Viale was present had been manufactured by Foster Wheeler. The court found that belief was based on an insufficient factual foundation and was therefore inadmissible lay opinion testimony.

Bernard Upton testified that Foster Wheeler put boilers in many locations in the North Bay and that boilers in the Contra Costa area were built by Foster Wheeler. The court found this testimony unpersuasive because Upton lacked personal knowledge of the matters described, said he had heard the information at union meetings, and testified that he did not remember seeing Foster Wheeler at a site while Viale was present.

The court also rejected Charles Ay's expert opinion that Viale was exposed to asbestos from a Foster Wheeler boiler at Mare Island. That opinion relied on the Uptons' testimony and therefore assumed a fact—the identification of the boiler as a Foster Wheeler product—that the court found unsupported by the evidence.

Ruling

The court granted Foster Wheeler LLC's motion for summary judgment, concluding that plaintiffs' evidence did not create a genuine issue for trial about whether the relevant boiler was manufactured by Foster Wheeler. The court also vacated the hearing scheduled for July 10, 2020.

The order's heading, discussion, and motion description identify Foster Wheeler as the moving defendant. Its final conclusion, however, states that "Union Carbide's motion for summary judgment" is granted. The opinion does not explain this discrepancy.