This case was last updated from Los Angeles County Superior Courts on 08/14/2019 at 08:39:44 (UTC).

TERESO FRIAS ET AL VS BASF CORPORATION ET AL

Case Summary

On 11/23/2016 TERESO FRIAS filed an Other - Environment lawsuit against BASF CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are ELIZABETH R. FEFFER and RICHARD E. RICO. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1789

  • Filing Date:

    11/23/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Environment

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELIZABETH R. FEFFER

RICHARD E. RICO

 

Party Details

Plaintiffs and Petitioners

FRIAS TERESO

RAMIREZ ADELA

Defendants and Respondents

BRASKEM AMERICA INC.

BASF CORPORATION

EMS-CHEMI (NORTH AMERICA) INC.

BAMBERGER POLYMERS INC.

BAYER MATERIAL SCIENCE LLC

EASTMAN CHEMICAL COMPANY

COVESTRO LLC

A. SCHULMAN INC. DOE 2

EQUISTAR CHEMICALS LP

INEOS USA LLC

EMS-CHEMIE NORTH AMERICA INC.

UOP LLC

FORMOSA PLASTICS CORP. INC.

POLYONE CORPORATION

FERCO GROUP INC.

RAVAGO AMERICAS DBA CHANNEL PRIME DOE 8

HONEYWELL INTERNATIONAL INC.

MESA INDUSTRIES INC.

12 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

METZGER RAPHAEL ESQ.

METZGER LAW GROUP APLC

Defendant Attorneys

OLSON STEVEN J.

LADDON TARIFA B.

HURWITZ SHELLEY G. ESQ.

O'BRIEN COLLEEN

COHEN-KATZ DEIDRE F. ESQ.

LEWIS BRISBOIS BISGAARD & SMITH LLP

O'MELVENY & MYERS LLP

TUCKER ELLIS LLP

LARSON ARNOLD D. ESQ.

CYR JONATHAN P. ESQ.

MEYER JASON F. ESQ.

DAL SOGLIO & MARTENS LLP

BRADLEY & GMELICH LLP

SCHNEIDER STEPHANIE BERMAN ESQ.

ACKER STEPHEN ESQ.

BENEDICT MOLLIE F. ESQ.

YANG REY S. ESQ.

SHAFFERY JOHN ESQ.

8 More Attorneys Available

 

Court Documents

CASE MANAGEMENT STATEMENT

4/4/2018: CASE MANAGEMENT STATEMENT

DEFENDANTS ENTEC POLYMERS LLC AND RAVAGO AMERICAS LLC'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; DEMAND FOR JURY TRIAL

7/3/2018: DEFENDANTS ENTEC POLYMERS LLC AND RAVAGO AMERICAS LLC'S ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT; DEMAND FOR JURY TRIAL

NOTICE OF APPLICATION AND APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY DEFENDANT NEW PIG CORPORATION, ETC

8/3/2018: NOTICE OF APPLICATION AND APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY DEFENDANT NEW PIG CORPORATION, ETC

STIPULATION AND ORDER REGARDING'S CLAIM FOR PUNITIVE DAMAGES AGAINST DEFENDANT A. SCHULMAN, INC.

8/16/2018: STIPULATION AND ORDER REGARDING'S CLAIM FOR PUNITIVE DAMAGES AGAINST DEFENDANT A. SCHULMAN, INC.

CASE MANAGEMENT STATEMENT

9/4/2018: CASE MANAGEMENT STATEMENT

Amendment to Complaint (Fictitious/Incorrect Name)

11/2/2018: Amendment to Complaint (Fictitious/Incorrect Name)

Other -

12/10/2018: Other -

DEFENDANT, MESA INDUSTRIES, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT

1/17/2017: DEFENDANT, MESA INDUSTRIES, INC.'S ANSWER TO PLAINTIFFS' COMPLAINT

DECLARATION OF CRISTINA M. MATSUSHIMA IN SUPPORT OF DEFENDANT BAMBERGER POLYMERS, INC.'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS? COMPLAINT

1/19/2017: DECLARATION OF CRISTINA M. MATSUSHIMA IN SUPPORT OF DEFENDANT BAMBERGER POLYMERS, INC.'S MOTION TO STRIKE PORTIONS OF PLAINTIFFS? COMPLAINT

DEFENDANT NEW PIG CORPORATION'S ANSWER TO PLAINTIFFS' COMPLAINT

1/27/2017: DEFENDANT NEW PIG CORPORATION'S ANSWER TO PLAINTIFFS' COMPLAINT

STIPULATION TO EXTEND TIME FOR DEFENDANT EQUISTAR CHEMICALS, LP TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT AND ORDER

1/30/2017: STIPULATION TO EXTEND TIME FOR DEFENDANT EQUISTAR CHEMICALS, LP TO ANSWER OR OTHERWISE RESPOND TO COMPLAINT AND ORDER

STIPULATION RE ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT AND ORDER

6/5/2017: STIPULATION RE ANSWER TO PLAINTIFFS' FIRST AMENDED COMPLAINT AND ORDER

DEFENDANT BAMBERGER POLYMERS, INC.'S MOTION TO STRIKE FIRST AMENDED COMPLAINT

6/13/2017: DEFENDANT BAMBERGER POLYMERS, INC.'S MOTION TO STRIKE FIRST AMENDED COMPLAINT

AMENDMENT TO COMPLAINT

6/21/2017: AMENDMENT TO COMPLAINT

DEFENDANT EQUISTAR CHEMICALS, LP'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT;ETC.

6/23/2017: DEFENDANT EQUISTAR CHEMICALS, LP'S NOTICE OF MOTION AND MOTION TO STRIKE PORTIONS OF PLAINTIFFS' FIRST AMENDED COMPLAINT;ETC.

NOTICE OF DISASSOCIATION OF COUNSEL FOR DEFENDANT RALCO INDUSTRIES, INC.

6/27/2017: NOTICE OF DISASSOCIATION OF COUNSEL FOR DEFENDANT RALCO INDUSTRIES, INC.

PLAINTIFFS' NOTICE OF LODGMENT OF FOREIGN AUTHORITIES IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT EQUISTAR CHEMICALS, LP'S MOTION TO STRIKE PLAINTIFFS' FIRST AMENDED COMPLAINT

9/5/2017: PLAINTIFFS' NOTICE OF LODGMENT OF FOREIGN AUTHORITIES IN SUPPORT OF PLAINTIFFS' OPPOSITION TO DEFENDANT EQUISTAR CHEMICALS, LP'S MOTION TO STRIKE PLAINTIFFS' FIRST AMENDED COMPLAINT

PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT EQUISTAR CHEMICALS, LP'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

9/5/2017: PLAINTIFFS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT EQUISTAR CHEMICALS, LP'S DEMURRER TO PLAINTIFFS' FIRST AMENDED COMPLAINT

399 More Documents Available

 

Docket Entries

  • 06/09/2020
  • Hearingat 09:00 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 06/04/2020
  • Hearingat 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 12/06/2019
  • Hearingat 08:30 AM in Department 17 at 111 North Hill Street, Los Angeles, CA 90012; Status Conference

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  • 07/11/2019
  • DocketRequest for Dismissal; Filed by Tereso Frias (Plaintiff)

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  • 07/09/2019
  • DocketRequest for Dismissal; Filed by Tereso Frias (Plaintiff)

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  • 06/14/2019
  • DocketNotice of Entry of Dismissal and Proof of Service; Filed by EquiStar Chemicals, LP (Defendant)

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  • 06/03/2019
  • Docketat 08:30 AM in Department 17, Richard E. Rico, Presiding; Court Order

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  • 06/03/2019
  • DocketNotice of Settlement (NOTICE OF SETTLEMENT [C.C..P. SECTION 877.6(a)(2)]); Filed by EMS-Chemie (North America) Inc. (Defendant)

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  • 06/03/2019
  • DocketOrder (ORDER ON APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT BY DEFENDANT EMS-CHEMIE(NORTH AMNERICA), INC.); Filed by Clerk

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  • 06/03/2019
  • DocketMinute Order ( (Court Order)); Filed by Clerk

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764 More Docket Entries
  • 11/23/2016
  • DocketCOMPLAINT FOR TOXIC INJURIES ASSERTING CAUSES OF ACTION FOR: (1) NEGLIGENCE;ETC

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  • 11/23/2016
  • DocketPLAINTIFFS' DAMAGES STATEMENT OF

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  • 11/23/2016
  • DocketReceipt-Depository; Filed by Tereso Frias (Plaintiff); Adela Ramirez (Plaintiff)

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  • 11/23/2016
  • DocketStatement of Damages (Personal Injury or Wrongful Death); Filed by Tereso Frias (Plaintiff); Adela Ramirez (Plaintiff)

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  • 11/23/2016
  • DocketNotice; Filed by Tereso Frias (Plaintiff); Adela Ramirez (Plaintiff)

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  • 11/23/2016
  • DocketSummons; Filed by Tereso Frias (Plaintiff); Adela Ramirez (Plaintiff)

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  • 11/23/2016
  • DocketComplaint; Filed by Tereso Frias (Plaintiff); Adela Ramirez (Plaintiff)

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  • 11/23/2016
  • DocketPLAINTIFFS' NOTICE OF POSTING JURY FEES

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  • 09/05/2016
  • DocketPoints and Authorities; Filed by Tereso Frias (Plaintiff)

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  • 01/19/2015
  • DocketPoints and Authorities; Filed by Bamberger Polymers, Inc. (Defendant)

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Tentative Rulings

Case Number: BC641789    Hearing Date: July 21, 2020    Dept: 17

SUPERIOR COURT OF CALIFORNIA

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

TERESO FRIAS, et al.

vs.

BASF CORPORATION, et al.

Case No.: BC641789

Hearing Date: July 21, 2020

Polyone’s motion, joined by ITW, for terminating sanctions, or alternatively, evidentiary sanctions, is DENIED in its entirety.

On November 23, 2016, Plaintiffs Tereso

Defendant Polyone Corporation (Polyone), joined by Defendant Illinois Toy Works (ITW), move for terminating sanctions, or in the alternative, evidentiary sanctions, against Plaintiff Tereso Frias, Metzger Law Group, Raphael Metzger, Esq., and Laura E. Goolsby, Esq., in the sum of $18,860.00.

Legal Standard

Under Code of Civil Procedure section 2023.030, the court is empowered to impose monetary, issue, evidence, or terminating sanctions for misuse of the discovery process, which includes, but is not limited to, the following:

(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

(b) Using a discovery method in a manner that does not comply with its specified procedures.

(c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

(d) Failing to respond or to submit to an authorized method of discovery.

(e) Making, without substantial justification, an unmeritorious objection to discovery.

(f) Making an evasive response to discovery.

(g) Disobeying a court order to provide discovery.

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made. (Code Civ. Proc., § 2023.010.)

Discussion

Under Code of Civil Procedure section 2023.030, the court is empowered to impose monetary, issue, evidence, or terminating sanctions for misuse of the discovery process. Here, Polyone argues that Plaintiffs and his counsel have engaged in the following misuse of the discovery process:

· Refused to respond to discovery requests related to the destructive testing of pathology material

· Provided incomplete discovery responses which failed to identify right lung pathology

· Refused to comply with a court order to “identify whether any pathology evidence had been destroyed so that it could no longer be tested or Plaintiff has lost two of the nine left lung tissue blocks.”

First, the Court notes as a preliminary matter that Rule 3.1345, subdivision (a)(7) requires that a separate statement be filed for issue or evidentiary sanction motions. Polyone failed to file any such separate statement. However, given the Court’s interest in efficiency, the Court will still consider the merits of the motion.

Plaintiff’s claim turns on allegations that he developed pulmonary fibrosis as a result of occupational exposure to a number of chemical products. After litigation had commenced, Plaintiff underwent a single left lung transplant. Polyone demanded that Plaintiff’s counsel preserve all tissue removed in connection to the left lung transplant. However, in a deposition with the pathologist responsible for examining Plaintiff’s left lung tissue, Polyone discovered that the pathologist “was never asked to preserve any of the left lung tissue that was not used either in the pathology slides or put into tissue blocks.” (Motion, 8: 7-10; Daloia Decl., ¶ 8, Exh. E., Koss Depo., 81:15-19.)

Polyone served written discovery responses to determine the amount and type of pathology material from Plaintiff. Based on Plaintiff’s responses, Polyone moved to compel further responses. While this motion was pending, Polyone discovered that Plaintiff had also taken possession of pathology material related to the right lung, despite there being no indication of such in Plaintiff’s discovery responses. The motion to compel discovery was ultimately granted, and stated, in relevant part:

Basic fairness would require that all pathology material taken from Plaintiff be available to both parties. If Plaintiff has taken steps that make any of his pathology material unavailable to Defendants for accurate testing, Plaintiff must disclose this information whether by interrogatory or otherwise.

In compliance with the order, Plaintiff submitted supplemental responses which stated that no destructive testing[1] had been performed on any of the pathology material taken from Plaintiff. However, when Poloyone picked up the pathology material from Plaintiff’s counsel’s office, they found that the materials only contained 7 of the 9 blocks identified on the chain of custody form and in Plaintiff’s discovery responses. Polyone contends that Plaintiff has been unable to explain why these two left lung tissue blocks are missing. Moreover, Polyone contends that Plaintiff has ignored all requests for information, and has not responded to any correspondence from Polyone since March 20, 2020.

As a result of this conduct, Polyone seeks the dismissal of the FAC against it, in its entirety. In the alternative, Polyone moves for an order “excluding Plaintiff from introducing all testimony, opinion, or evidence relating to or mentioning pathology material reviewed or examined in any way by any consultant or expert (retained or non-retained) of Plaintiff.” (Motion, 11:25-12:3.)

California courts have found terminating sanctions warranted when the following factors or circumstances were present: (1) the conduct was clear and deliberate; (2) the evidence shows that less severe sanctions would not produce compliance; (3) the party shows “no interest in taking part in the case” (Del Junco v. Hufnagel (2007) 150 Cal.App.4th 789, 800) (4) there is a history of abuse; and (5) the court issues a directive that the party fails to obey. (See Van Sickle v. Gilbert (2011) 196 Cal.App.4th 1495, 1516.)

At first glance, Polyone’s request that all testimony, opinion, or evidence regarding all pathology material is overbroad, given that both Plaintiff and Polyone has had an opportunity to review 7 of the 9 pathology blocks. As such, it appears to the Court that the question should be whether Plaintiff should be barred from introducing any testimony, opinion, or evidence arising out of these 2 missing pathology blocks.

Plaintiff submitted a declaration from Alejandro Garcia, the medical paralegal at Plaintiff’s counsel’s firm. Mr. Garcia stated that he contacted the Keck Medical Center of USC (Keck) to request that all of Plaintiff’s pathology materials be sent directly to Dr. Jerrold Abraham. He stated that the chain of custody document indicated the following pathology materials:

· SPl 7-10644: 10 slides, 9 paraffin blocks

· SPl 7-12544: 14 slides, 1 paraffin block

· SP18-149: 14 slides, 1 paraffin block

· SP18-6944: 1 slide, 1 paraffin block

· SP18-2000: 14 slides, 1 paraffin block

· SP18-12505: 5 slides, 3 paraffin blocks

· SP18-4676: 14 slides, 1 paraffin block

(Garcia Decl., ¶¶ 3, 6.)

Plaintiff submitted a declaration from Dr. Jerrold Abraham. Dr. Abraham states that he received the materials from Keck, that he performed no destructive testing, and that on completion of the approved testing, he sent the following pathology materials to Plaintiff’s counsel:

· SPl 7-10644: 10 slides, 9 paraffin blocks

· SPl 7-12544: 14 slides, 1 paraffin block

· SP18-149: 14 slides, 1 paraffin block

· SP18-6944: 1 slide, 1 paraffin block

· SP18-2000: 14 slides, 1 paraffin block

· SP18-12505: 5 slides, 3 paraffin blocks

· SP18-4676: 14 slides, 1 paraffin block

(Abraham Decl., ¶ 11.)

Plaintiff also submitted a declaration from Rita Pollack, the legal assistant for Plaintiff’s counsel who was responsible for providing Plaintiff’s pathology materials received from Dr. Abraham “to a designated courier from the office of defense counsel as [defense counsel] would be away from the office.” (Pollack Decl., ¶ 3.) Ms. Pollack stated that she received the pathology materials on the morning of January 14, 2020, and that the materials remained in her custody until approximately 9:30 to 9:45 am. (Id. at ¶¶ 5,6.) When defense counsel’s courier, Steve Molina, arrived, she presented him, “with the pathology materials and chain of custody document and asked him to verify the materials and complete and sign the document.” (Id. at ¶ 7.) Finally, Ms. Pollack stated, “[w]hile the pathology materials were in my custody, I did not remove, tamper with, or even open the material packaging, and no one else did either.” (Id. at ¶ 10.)

After reviewing Plaintiff’s evidence and opposition, the Court is persuaded that the weight of the evidence suggests that no willful destruction of evidence by Plaintiff’s counsel took place, and that no destructive testing was performed. As such none of the conditions which warrant terminating sanctions are present here. (Del Junco, supra, 150 Cal.App.4th at p. 800; Van Sickle, supra, 196 Cal.App.4th at p. 1516.) Moreover, the Court finds insufficient evidence of a misuse of the discovery process. Therefore, the Court declines to award evidentiary sanctions.(CCP § 2023.030)

Based on the foregoing, Polyone’s motion, joined by ITW, for terminating, or alternatively, evidentiary sanctions, is denied.

It is so ordered.

Dated: July , 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.


[1] Here, “destructive testing” refers to either the removal of tissue from a paraffin block or the performance of electron microscopy testing. If either is performed on a tissue sample, the tissue is destroyed and no longer available. (Motion, 10, fn 1; Daloia Decl., Exh. E, Koss Depo., 84:12-85:8.)

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

TERESO FRIAS, et al.

vs.

BASF CORPORATION, et al.

Defendants.

Case No.: BC641789

Hearing Date: July 21, 2020

ITW’s motion for summary judgment is DENIED.

On November 23, 2016, Plaintiffs Tereso [1]

Illinois Tool Works (ITW) now moves for summary judgment.

Legal Standard

Code of Civil Procedure section 437c, subdivision (a) provides that a “party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Subdivision (p)(2) of the same section provides that where a defendant presents evidence showing one or more elements of a cause of action cannot be established, then the burden shifts to plaintiff to show the existence of a triable issue of material fact. (See Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.) A party is also permitted to move for summary adjudication of a particular issue, which can be granted “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 fn.11, original italics.)

Factual Background

ITW is a manufacturer of DS Series Hot Stamping Foils, which it supplied to Plaintiff’s employer Cambro.

Objections

CCP 437c, subdivision (q) provides:

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

The Court overrules Plaintiff’s two evidentiary objections.

Discussion

The substantive issue before the Court is whether Plaintiff can establish causation with respect to his claims against ITW. Specifically, ITW argues that Plaintiff cannot establish that Plaintiff “has ever worked with or any DS Series Hot Stamping Foils in the first place, let alone that such alleged work caused Plaintiff to be exposed to any chemicals or respiratory or pulmonary toxins that ultimately led to the development of his disease.” (Motion, 8:1-5.)

To determine questions of cause-in-fact, California Courts employ the substantial factor test laid out in Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953, 969. Under this test, a plaintiff may prove causation by demonstrating that exposure to defendant's product, in reasonable medical probability, was a substantial factor in contributing to risk of disease. (Ibid.) The term “substantial factor” has not been judicially defined with specificity, and “[u]ndue emphasis should not be placed on the term “substantial.” (Ibid.)

ITW advances two arguments to show Plaintiff cannot establish causation: (1) Plaintiff cannot establish he was exposed to ITW products; (2) even if he can establish he was exposed to ITW products, Plaintiff cannot establish that this exposure caused his medical injuries.

In support of its former causation argument, ITW submitted evidence that during his deposition, Plaintiff testified that he had no knowledge of working with or around DS Series Hot Stamping Foil. (SSUMF 16-18).

However, Plaintiff submitted evidence that invoices from Cambro to ITW show that ITW regularly supplied its hot stamping foil to Cambro during the years Plaintiff worked at Cambro. (PUF Nos. 12-13.) Moreover, Plaintiff submitted evidence that Cambro Person Most Knowledgeable (PMK), Chris D’Innocente, testified that ITW’s hot stamping foils were used in Cambro’s manufacture of plastic products at either the Clay or Skylab Cambro facility (PUF No. 13). Plaintiff submitted evidence that he worked at the Clay facility, the Skylab facility, and the City of Industry facility during his tenure. (PUF No. 5.) Finally, Plaintiff submitted evidence that he personally worked with and around hot stamping foil from approximately 1998 to 2009, and that he was around hot stamping foils “all the time.” (PUF No. 10.)

This is sufficient to create a triable issue of material fact as to whether Plaintiff was exposed to ITW’s hot stamping foil product.

In support of its latter causation argument, ITW submitted an expert witness declaration from Dr. James Caplan. Dr. Caplan stated that hot stamping foils which are over 99% polyethylene terephthalate (PET) have no respiratory toxicity associated with them, and thus, if Plaintiff used or was otherwise in the presence of others using hot stamping foils, there would have been no toxic chemicals emitted that would be causative of pulmonary fibrosis. (SUMF No. 25; Caplan Decl.)

However, Plaintiff submitted evidence that ITW’s hot stamping foils are not over 99% PET, and contain polymeric resins, polymeric wax, dyestuff and pigments, and aluminum in varying percentages. (Def. Mtn, Exh. 1; RMF 25.) Moreover, Plaintiff submitted an expert witness declaration from Dr. Nachman Brautbar, which disputes Dr. Caplan’s assertions, and which states, “[i]t is my opinion, which I hold to a reasonable degree of medical probability, that [Plaintiff’s] exposure to toxic vapors, dusts and particulates, including, but not limited to aluminum, titanium, and fiberglass, released from Defendants’ products before, and after, and during the heating process, described above, were substantial factors in causing [Plaintiff’s] interstitial lung disease and pulmonary fibrosis.” (Brautbar Decl., ¶¶ 70, 73, 95; PUF Nos. 11, 17-18.)

This is sufficient to create a triable issue of fact as to whether ITW’s hot stamping foils are under 99% PET, and whether Plaintiff’s exposure to ITW’s hot stamping foils could have been a substantial factor in causing Plaintiff’s interstitial lung disease and pulmonary fibrosis.

Plaintiff’s submitted evidence could support a reasonable inference that Plaintiff was exposed to ITW’s hot stamping foil, and that it was a substantial factor in causing Plaintiff’s interstitial lung disease and pulmonary fibrosis.( Rutherford, supra, 16 Cal.4th at p. 969)

Accordingly, ITW’s motion for summary judgment is DENIED.

It is so ordered.

Dated: July , 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.


[1] Ramirez’ loss of consortium claim was dismissed on 6/27/17. 

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

TERESO FRIAS, et al.

vs.

BASF CORPORATION, et al.

Defendants.

Case No.: BC641789

Hearing Date: July 21, 2020

Defendant BASF’s motion for summary judgment is DENIED.

On November 23, 2016, Plaintiffs Tereso [1]

BASF Corporation (BASF) now moves for summary judgment.

Legal Standard

Code of Civil Procedure section 437c, subdivision (a) provides that a “party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Subdivision (p)(2) of the same section provides that where a defendant presents evidence showing one or more elements of a cause of action cannot be established, then the burden shifts to plaintiff to show the existence of a triable issue of material fact. (See Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.) A party is also permitted to move for summary adjudication of a particular issue, which can be granted “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 fn.11, original italics.)

Factual Background

BASF is a manufacturer of plastic products, which it supplied to Plaintiff’s employer Cambro.

Evidentiary Objections

CCP 437c, subdivision (q) provides:

In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

The Court overrules Plaintiff’s two evidentiary objections.

Discussion

The substantive issue before the Court is whether Plaintiff can establish causation with respect to his claims against BASF.

To determine questions of cause-in-fact, California Courts employ the substantial factor test laid out in Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953, 969. Under this test, a plaintiff may prove causation by demonstrating that exposure to defendant's product, in reasonable medical probability, was substantial factor in contributing to risk of disease. (Ibid.) The term “substantial factor” has not been judicially defined with specificity, and “[u]ndue emphasis should not be placed on the term “substantial.” (Ibid.)

BASF advances two arguments to show Plaintiff cannot establish causation: (1) Plaintiff cannot establish he was exposed to BASF products; (2) even if he can establish he was exposed to BASF products, Plaintiff cannot establish that this exposure caused his medical injuries.

In support of the former causation argument, BASF submitted evidence that Plaintiff worked at Cambro’s Clay facility from September 1998 to 2000. (UMC No. 5.) Defendant submitted evidence that BASF only first supplied products to the Clay facility in 2003. Defendant submitted evidence that Plaintiff worked at the Cambro Skylab Road facility from 2000 to 2006. (UMF No. 9.) Defendant submitted evidence that from 2002 to 2004, Plaintiff only worked in buildings 1 and 2 at the Skylab facility, that these buildings contained only finished products, and that Plaintiff’s duties during this time did not require him to touch or mix any of the raw materials. BASF submitted evidence that Plaintiff was transferred to the City of Industry facility in 2006. (UF No. 23.)

However, Plaintiff submitted evidence that BASF consistently supplied its plastic products to Cambro from 2003 to 2015. (PUF No. 10.) Plaintiff submitted evidence that he wasn’t transferred to the Skylab Road facility until 2009 or 2010, and that he only transferred from the Skylab facility to the City of Industry facility in 2011. (PUF No. 6).

Plaintiff submitted evidence that there was limited ventilating in the Skylab facility, that BASF’s plastic products were being heated while he worked in the Skylab facility, and that respirable particles of fiberglass and titanium from BASF’s products are released in the air by the heating process. (PUF Nos. 16-17.)

Plaintiff’s evidence gives rise to a reasonable inference that he was still working at the Clay facility after 2003 when BASF itself states it began to provide products to the Clay facility, and that Plaintiff was exposed to BASF products during his time at the Clay facility. Moreover, Plaintiff’s evidence supports a reasonable inference that he was exposed to BASF’s products during his time at Skylab. This creates a triable issue of material fact as to whether Plaintiff was exposed to BASF products.

In support of the latter causation argument, BASF submitted an expert witness declaration from an industrial hygiene expert, Corren Robbins, who stated that there is no scientific or evidentiary basis to connect any of BASF’s products at issue and pulmonary fibrosis. (UMF No. 26) Ms. Robbins stated “[t]here is no evidence that [Plaintiff’s] pulmonary fibrosis could have been caused by contact, if any, with BASF products during his employment at Cambro Manufacturing Company.” (Ibid.).

BASF also argues that because Plaintiff cannot show that his injuries arise from exposure to BASF’s products, BASF cannot be liable for any exposure to finished goods as a matter of law. (Motion, 6: 15-22.) A component supplier of raw materials cannot be held liable in tort for defects arising from exposure to finish products made with those raw materials, unless there is a showing that the finished products were defective because of a defect in the raw materials. (Ramos v. Brenntag Specialties, Inc. (2016) 63 Cal.4th 500, 508 (citing Webb v. Specialty Elect Co., Inc. (2016) 63 Cal.4th 167, 183- 85). See also Gonzalez v. Autoliv ASP, Inc. (2007) 154 Cal.App.4th 780, 788 (“A component part manufacturer that had no role in designing the finished product and who supplied a non-defective component part cannot be held liable for the defective product.”).

However, as set forth above, the Court has concluded a triable issue of material fact exists as to whether Plaintiff was exposed to BASF products, and whether that exposure caused Plaintiff’s interstitial lung disease. Moreover, Plaintiff submitted an expert declaration from Dr. Baschman Brautbar, which disputes Ms. Robbins assertions, and cites a robust body of literature which suggests that fiberglass is a contributing factor in the development of pulmonary fibrosis and interstitial lung disease, and which shows that titanium dioxide is associated with pulmonary fibrosis and interstitial lung disease. (Brautbar Decl., ¶¶ 79, 87.)

This is sufficient to create a triable issue of fact as to whether exposure to BASF’s products could have been a substantial factor in causing Plaintiff’s interstitial lung disease and pulmonary fibrosis.

II. Failure to Warn

BASF argues that Plaintiff cannot establish a claim for a failure to warn because Plaintiff has not, and cannot, submit evidence establishing that BASF had notice that its products were associated with any serious lung injury.

The rules of strict liability require a plaintiff to prove only that the defendant did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution. (Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89,100.)

Here, BASF argues that Plaintiff has not submitted any evidence that the risk of serious lung disease from Terluran HI-10 Natural ABS or Terluran GP-22 ABS was known or knowable at the time BASF’s products were supplied to Cambro.

In opposition, Plaintiff submitted evidence that BASF’s safety data sheets included an identification the hazardous decomposition products of Terluran HI-10 Natural, which states “Hazardous decomposition products: hydrogen cyanide monomers, hydrocarbons, gases/vapours, cyclic low molecular weight oligomers, oxides, Gaseous products of degradation can be given off if the product is greatly overheated.” (Goolsby Decl., Exh. F.) Plaintiff argues that this evidence establishes that BASF knew that byproducts hazardous to the lungs were released when the product was heated, yet safety sheet fails to warn of the potential of any lung diseases, including interstitial lung disease and pulmonary fibrosis.

This evidence is sufficient to create a triable issue of material fact as to whether the risk of serious lung disease from BASF’s products was known or knowable such that it had a duty to warn. (Conte, supra, 168 Cal.App.4th at p. 100.)

It is so ordered.

Dated: July , 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.


[1] Ramirez’ loss of consortium claim was dismissed on 6/27/17.

SUPERIOR COURT OF CALIFORNIA

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

TERESO FRIAS, et al.

vs.

BASF CORPORATION, et al.

Defendants.

Case No.: BC641789

Hearing Date: July 21, 2020

Covestro’s motion for summary judgment is DENIED.

On November 23, 2016, Plaintiffs Tereso [1]

Covestro now moves for summary judgment.

Legal Standard

Code of Civil Procedure section 437c, subdivision (a) provides that a “party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Subdivision (p)(2) of the same section provides that where a defendant presents evidence showing one or more elements of a cause of action cannot be established, then the burden shifts to plaintiff to show the existence of a triable issue of material fact. (See Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.) A party is also permitted to move for summary adjudication of a particular issue, which can be granted “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 fn.11, original italics.)

Factual Background

Covestro is a manufacturer of Makrolon plastic products, including Texin 972D, which it supplied to Plaintiff’s employer Cambro. Plaintiff alleges that Covestro’s plastic products emit toxic chemicals such as titanium dioxide when heated.

Discussion

The substantive issue before the Court is whether Plaintiff can establish causation with respect to his claims against Covestro. Specifically, Covestro argues that “the evidence confirms that Plaintiff was not exposed to Covestro products and [] no Covestro product could have caused or contributed to his injuries.” (Motion, 1: 15-17.)

To determine questions of cause-in-fact, California Courts employ the substantial factor test laid out in Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953, 969. Under this test, a plaintiff may prove causation by demonstrating that exposure to defendant's product, in reasonable medical probability, was a substantial factor in contributing to risk of disease. (Ibid.) The term “substantial factor” has not been judicially defined with specificity, a­nd “[u]ndue emphasis should not be placed on the term “substantial.” (Ibid.)

Covestro advances tw­­o arguments to show Plaintiff cannot establish causation: (1) Plaintiff cannot establish he was exposed to Covestro products; (2) even if he can establish he was exposed to Covestro products, Plaintiff cannot establish that this exposure caused his medical injuries.

In support of the former causation argument, Covestro submitted evidence that Texin 972D was not commercially available or supplied to Cambro until late 2015, and Plaintiff’s employment at Cambro ended in March 2015. (UMF No. 3.) Defendant also submitted evidence that Plaintiff was unable during his deposition to identify any Covestro product he worked with or around during his employment at Cambro. (UMF No. 8.)

However, Plaintiff submitted evidence that his claim against Covestro is for exposure to a broad class of Makrolon plastic products. Plaintiff’s evidence shows invoices from Cambro to Covestro to show that Covestro regularly supplied its Makrolon plastics products to Cambro during the years Plaintiff worked at Cambro. (PUF Nos. 12-13.) Moreover, Plaintiff submitted evidence that Cambro Person Most Knowledgeable (PMK), Chris D’Innocente, testified that Covestro’s Makrolon plastic products were used in Cambro’s manufacture of plastic products at either the Clay or Skylab Cambro facility (PUF No. 13). Plaintiff submitted evidence that he worked at the Clay facility, the Skylab facility, and the City of Industry facility during his tenure.(PUF No. 5.) Plaintiff submitted evidence that he personally worked with and around plastic products at Cambro and that these products were heated and that he consistently inhaled related smoke. (PUG No. 14.)

Covestro argues that Plaintiff’s evidence is insufficient as a matter of law because the mere fact that Plaintiff was employed at Cambro during a time when Covestro was supplying it products is insufficient to permit an inference of exposure. In support, Covestro cites to cases like Schiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 252-253, wherein the Court concluded that “Mere presence at a site where asbestos was present is insufficient to establish legally significant asbestos exposure.” However, here, Plaintiff does not submit evidence merely to show he was employed by Cambro at the time Covestro suppled plastic products to it. Rather, Plaintiff has submitted evidence to show that he regularly worked with plastic products, that Covestro’s Makrolon products were used in Cambro’s manufacture of plastic products at either the Clay or Skylab Cambro facility, and that Plaintiff worked at both the Clay and Skylab facilities during his tenure. Moreover, the plaintiff in Schiffer did not submit evidence to establish the extent or duration of his alleged exposure, and “did not say whether or on how many occasions he observed the insulation process, itself, or whether he merely saw the results of the process after being off-site for some time.” By contrast, Plaintiff here submitted evidence that he was exposed to Covestro’s products over an extended period of time, in facilities which did not have any ventilation other than some windows and doors, ceiling fans, and occasional use of portable ventilation. (PUF No. 17.)

This evidence is sufficient to support a reasonable inference that Plaintiff worked in the Cambro facility using Makrolon plastic products, and that he was exposed to fumes emitted by Covestro’s products. Thus, Plaintiff’s evidence is sufficient to create a triable issue of material fact as to whether Plaintiff was indeed exposed to Covestro’s Makrolon’s products.

In support of the latter causation argument, Covestro submitted an expert witness declaration from Marion Joseph Fedoruk who concluded that any work with or around Covestro’s Makrolon products cannot be established to be the cause or a significant contributing factor to Plaintiff’s interstitial lung disease. (UMF No. 15; See Dr. Fedoruk Decl.)

However, Plaintiff submitted an expert witness declaration from Dr. Nachman Brautbar, which disputes Dr. Fedoruk’s assertions, and which states,

Dr. Fedoruk asserts that "titanium dioxide when bound in a plastic matrix is not expected to create a health hazard, as could occur with handling powder or dust," but offers no support for this notion. Mr. Frias has provided a work history both to me, during my in-person examinations, and in his deposition testimony, which includes exposure to dust from pre-heated plastics products, as well as to smoke and fumes released from the heated products. The heating process itself is expected to aerosolize the chemical constituents of such products, making them respirable.

As I stated previously, the literature supports the association between titanium dioxide and pulmonary fibrosis. Nasr, M.R., et al., "Inorganic dust exposure causes pulmonary fibrosis in smokers: analysis using light microscopy, scanning electron microscopy, and energy dispersive X-ray spectroscopy," Arch Environ Occup Health. (2006) 61 (2):53-60, examined the risk factor of inorganic dust exposure in the development of pulmonary fibrosis. Nasr et al. found that pulmonary fibrosis was highly significantly associated with titanium concentrations (p = 0.0006).

For the foregoing reasons, it is my opinion, which I hold to a reasonable degree of medical probability, that Mr. Frias's exposure to toxic vapors, dusts and particulates, including, but not limited to aluminum, titanium, and fiberglass, released from Defendants' products before, after, and during the heating process, described above, were substantial factors in causing Mr. Frias's interstitial lung disease and pulmonary fibrosis.

(Brautbar Decl., ¶¶ 91-92, 95.)

This expert witness evidence is sufficient to create a triable issue of fact as to whether Covestro’s Makrolon products could have been a substantial factor in causing Plaintiff’s interstitial lung disease and pulmonary fibrosis.

Plaintiff’s submitted evidence could support a reasonable inference that Plaintiff was exposed to Covestro’s Makrolon products, and that it was a substantial factor in causing Plaintiff’s interstitial lung disease and pulmonary fibrosis.( Rutherford, supra, 16 Cal.4th at p. 969)

Accordingly, Covestro’s motion for summary judgment is DENIED.

It is so ordered.

Dated: July , 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.


[1] Ramirez’ loss of consortium claim was dismissed on 6/27/17. 

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

TERESO FRIAS, et al.

vs.

BASF CORPORATION, et al.

Defendants.

Case No.: BC641789

Hearing Date: July 21, 2020

Polyone’s motion for summary judgment is DENIED.

On November 23, 2016, Plaintiffs Tereso [1]

Polyone now moves for summary judgment.

Legal Standard

Code of Civil Procedure section 437c, subdivision (a) provides that a “party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Subdivision (p)(2) of the same section provides that where a defendant presents evidence showing one or more elements of a cause of action cannot be established, then the burden shifts to plaintiff to show the existence of a triable issue of material fact. (See Blue Shield of California Life & Health Insurance Co. v. Superior Court (2011) 192 Cal.App.4th 727, 732.) A party is also permitted to move for summary adjudication of a particular issue, which can be granted “only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 fn.11, original italics.)

Factual Background

Polyone is a manufacturer of plastic colorant materials, which it supplied to Plaintiff’s employer Cambro.

Discussion

The substantive issue before the Court is whether Plaintiff can establish causation with respect to his claims against Polyone.

To determine questions of cause-in-fact, California Courts employ the substantial factor test laid out in Rutherford v. Owens-Illinois (1997) 16 Cal.4th 953, 969. Under this test, a plaintiff may prove causation by demonstrating that exposure to defendant's product, in reasonable medical probability, was a substantial factor in contributing to risk of disease. (Ibid.) The term “substantial factor” has not been judicially defined with specificity, and “[u]ndue emphasis should not be placed on the term “substantial.” (Ibid.)

Polyone advances a single argument to show Plaintiff cannot establish causation: Plaintiff cannot establish he was exposed to Polyone products.

In support, Polyone submitted evidence that Plaintiff was not responsible for ordering raw materials and did not have any involvement with purchasing the products used at Cambro, and that Plaintiff cannot recall the names of any products he used. (UMF Nos. 51-52.) Polyone also submitted evidence to that Cambro’s Person Most Knowledgeable (PMK) testified that he has no knowledge or information about whether Plaintiff actually used or worked around any of Polyone’s products his Plaintiff’s tenure at Cambro. (UMF No. 56.) As a result, Polyone argues, “At best, Plaintiff is left with the mere possibility of his exposure to a product that was suppled to Cambro, which falls well short of meeting his burden under California law [original emphasis].” (UMF No. 57.)

In opposition, Plaintiff submitted evidence that invoices from Cambro to Polyone show that Polyone regularly supplied products to Cambro during the years Plaintiff worked at Cambro. (PUF Nos. 12-13.) Moreover, Plaintiff submitted evidence that Cambro Person Most Knowledgeable (PMK), Chris D’Innocente, testified that Polyone’s plastic colorant materials were used in Cambro’s manufacture of plastic products at either the Clay or Skylab Cambro facility (PUF No. 12-15). Plaintiff submitted evidence that he worked at the Clay facility, the Skylab facility, and the City of Industry facility during his tenure.(PUF No. 5.) Plaintiff submitted evidence that he personally worked with and around Polyone’s products at Cambro. (PUG Nos. 1, 2, 6, 11-16) Plaintiff submitted evidence that when heated by injection molding machines, Polyone’s products melt, releasing smoke and fumes that Plaintiff consistently inhaled throughout his tenure at Cambro (PUF No. 16). Plaintiff submitted evidence that the injection molding machines did not have an exhaust pipe or ventilation hood and Cambro did not use air scrubbers. (PUF No. 17.) Plaintiff submitted evidence that during his employment, Cambro’s manufacturing facilities did not have any ventilation other than some windows and doors, ceiling fans, and occasional use of portable ventilation during his employment and that these products were heated and that he consistently inhaled related smoke. (PUG 18.)

To dispute Plaintiff’s evidence, Polyone cites cases like McGonnell v. Kaiser Gypsum Co. Inc (2002) 98 Cal.App.4th 1098 and Lineaweaver v. Plant Insulation Co. (1995) 31 Cal.App.4th 1409, 1421. However, both are distinguishable from the facts here.

In Lineaweaver, the Court concluded that plaintiff’s circumstantial evidence of exposure was sufficient because the evidence showed the product was “prominent and prevalent” at the work site. The Court also explained its rationale for concluding certain plaintiffs had failed to submit sufficient evidence of exposure, writing:

In contrast, appellants King and Ward failed to present sufficient evidence to permit the inference that they were exposed to Pabco products. Ward never demonstrated that Pabco products were aboard the ships he manned. Ward testified that he worked in the engine room of 60 ships during his tenure with the merchant marine. He could not identify Pabco as ever being aboard any of those ships. Nor did any other witness testify to the presence of Pabco products on those ships. Ward did offer the testimony of two OCF insulators, who worked, at largely unspecified times, on no more than 20 percent of the sixty ships to which Ward was assigned. The insulators insulation insulators. There is simply no evidence that Pabco asbestos products were actually used, or even probably used, on any of the ships at the time Ward was serving aboard them.

In McGonnell, a plumber/pipefitter sued a manufacturer alleging injury from sustained exposed to asbestos products. The Court ultimately concluded that plaintiff had failed to present sufficient evidence of exposure. Polyone contends that Court’s ruling was based on plaintiff’s inability to “identify defendant’s product as being present in his work place.” (Motion, 16: 15.) However, the rationale behind the Court’s conclusion was much more expansive than Polyone represents. First, the Court’s emphasis on plaintiff’s inability to identify defendant’s product was contextualized by the following:

[Plaintiff] Gypsum. His failure to place any Kaiser Kaiser

Here, by contrast, Plaintiff has not been able to selectively identify different products, but rather has indicated he was not aware of the specific names of products being used in Cambro factories. Moreover, the Court in McGonnell does not conclude that this failure to identify the product prevented a plaintiff from establishing causation per se. Rather, the Court said that in such an instance circumstantial evidence establishing exposure was then needed.

The McGonnell Court further explained its rationale stating,

Plaintiffs submitted their own McGonnell McGonnell McGonnell Kaiser Kaiser

Viewed in its best light, plaintiffs' evidence suggests that Kaiser

Here, Plaintiff has submitted evidence that Polyone supplied products to Cambro during his tenure, that he worked at the facilities where those products were being used and heated, that when heated, Polyone’s products release smoke and fumes which Plaintiff inhaled in facilities with limited ventilation. This differs starkly from the McGonnell and Lineawaver plaintiffs who failed submit evidence to show that they were actually ever in the presence of products containing asbestos.

The Court concludes that Plaintiff’s evidence is sufficient to create a triable issue of fact as to whether Plaintiff was exposed to Polyone’s products. Accordingly, Polyone’s motion for summary judgment is denied.

It is so ordered.

Dated: July , 2020

Hon. Jon R. Takasugi

Judge of the Superior Court

 

 

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If all parties to a motion submit, the court will adopt this tentative as the final order. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar.

Due to Covid-19, the court is strongly discouraging in-person appearances. Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk. The court encourages the parties wishing to argue to appear via L.A. Court Connect. For more information, please contact the court clerk at (213) 633-0517. Your understanding during these difficult times is appreciated.


[1] Ramirez’ loss of consortium claim was dismissed on 6/27/17.