Viale v. Air & Liquid Systems Corp

Background

The plaintiffs were Debbie Viale and Amber Jacobs, identified as Ronald Viale’s wife and daughter. The Second Amended Complaint alleged that Ronald Viale used, handled, or was otherwise exposed to asbestos and asbestos-containing products provided or manufactured by the defendants; that he developed terminal cancer, mesothelioma, as a result; and that he died in July 2018.

The plaintiffs asserted four causes of action against Foster Wheeler LLC: negligence, strict liability, false representation, and intentional tort. The order addressed Foster Wheeler’s motion for summary judgment, filed May 29, 2020.

Summary-Judgment Standard

Summary judgment is granted when the evidence shows that no genuine dispute over a material fact requires a trial. The court explained that a defendant without the ultimate burden of persuasion at trial may meet its initial burden by pointing to an absence of evidence supporting an essential element of the opposing party’s claims. Once that burden is met, the opposing party must identify specific facts supported by affidavits or other evidence showing a genuine issue for trial.

Evidence Considered

Foster Wheeler submitted the plaintiffs’ interrogatory responses; deposition excerpts from people identified as having knowledge of Ronald Viale’s exposure to Foster Wheeler products; deposition excerpts from two of his coworkers; and two reports from the plaintiffs’ designated experts. The court found that Foster Wheeler met its initial burden.

The plaintiffs submitted more than 600 pages of deposition excerpts and other documents, along with three expert reports. They argued that testimony from Benjamin Upton and Bernard Upton and an expert report by Charles Ay created a triable issue about whether Foster Wheeler manufactured a boiler at Mare Island Naval Shipyard.

The court rejected that argument. Benjamin Upton testified that he believed Foster Wheeler manufactured a boiler demolished in Ronald Viale’s presence. The court treated that belief as an inference from an insufficient factual basis and therefore inadmissible lay opinion under Federal Rule of Evidence 701(a), which requires lay opinion to be rationally based on the witness’s perception.

Bernard Upton testified that Foster Wheeler put boilers in many places in the North Bay and that boilers in the Contra Costa County area were built by Foster Wheeler. But he acknowledged that he lacked personal knowledge of those matters and had heard the information at union meetings. He also testified that he did not remember seeing Foster Wheeler at a site when Ronald Viale was present. The court therefore found his testimony insufficient to connect Foster Wheeler to the boiler at issue.

The court also rejected Charles Ay’s expert opinion that Ronald Viale was exposed to asbestos from a Foster Wheeler boiler at Mare Island. The opinion relied on Benjamin Upton’s and Bernard Upton’s testimony and therefore assumed a fact that the evidence did not support.

Ruling

The court concluded that the plaintiffs lacked evidence establishing that Ronald Viale was exposed to an asbestos-containing product manufactured, sold, or supplied by Foster Wheeler. The court therefore granted Foster Wheeler LLC’s motion for summary judgment and vacated the July 10, 2020 hearing.