Often times we, as attorneys, need subtle reminders of the power of burden shifting during discovery. We were provided that reminder in a recent, though unpublished, take-home asbestos appellate court opinion which upheld a trial court’s granting of a motion for summary judgment. (Foglia v. Moore Dry Dock Co., No. A142125, 2018 WL 1193683 (Cal. Ct. App. Mar. 8, 2018)

The appellate court in Foglia agreed with the trial court decision that the plaintiffs could offer no admissible evidence that the decedent’s father worked around asbestos-containing materials. Plaintiffs, the Foglia family, brought a wrongful death claim against defendant Moore Dry Dock (“Moore”) on behalf of decedent Ron Foglia. The plaintiffs alleged that the decedent developed mesothelioma based on take-home exposure from decedent’s father, who allegedly worked as an electrician at a shipyard operated by Moore. Decedent admitted during his deposition that he had only “heard” through his aunt that his father worked at Moore.

The trial court excluded this testimony because Decedent admitted he had no personal knowledge of it. The trial court then excluded an affidavit of the decedent’s aunt who also had no personal knowledge concerning the work of decedent’s father. Based on these factual deficiencies, Moore moved for summary judgment, arguing: (1) that it did not owe a duty of care to the family members of its employees; and (2) that the plaintiffs did not provide evidence that decedent was exposed to asbestos via his father’s work at Moore.

While the trial court found that Moore could owe a duty of care to family members of its employees, it held that the plaintiffs had not proffered admissible evidence of decedent’s father’s exposure to asbestos while working at Moore. Therefore, the plaintiffs did not produce admissible evidence to raise triable issues of fact (the evidence proffered was not only considered hearsay, but also found to be factually devoid because there was no evidence that actually indicated the father was exposed to asbestos).

The trial court indicated that Moore had made a sufficient showing based on the plaintiffs’ factually devoid discovery to shift the burden of proof to the plaintiffs regarding the alleged exposure of decedent’s father. Ultimately, the trial court found plaintiffs could not rebut this burden and summary judgment was granted. Plaintiffs appealed this grant of summary judgment.

The appellate court specifically rejected an argument that simply being present at the shipyard could have caused exposure to asbestos because there was no evidence offered by the plaintiffs as to amount of asbestos work done at Moore, of what the levels of asbestos would have been at the shipyard, or that the decedent’s father was near any work involving asbestos. The appellate court further found it was already proven that neither the decedent nor his aunt had any independent knowledge that the decedent’s father worked as a lead electrician on ships or in the shipyard. As such, Moore was not required to have deposed the decedent’s aunt, and the burden of proof had shifted back to plaintiffs after the defendant demonstrated that their discovery responses were factually devoid. As a result the appellate court upheld the trial court’s grant of summary judgment.

Foglia is an unpublished opinion, but it is an important reminder for Defendants to take advantage of the opportunity to question the admissibility of liability evidence that may be offered against them. It is also a reminder that attorneys must remain on alert for the ever important burden-shifting that can take place during discovery.