Walsworth Obtains Summary Judgment in Asbestos Matter
Walsworth obtains summary judgment on behalf of client in a wrongful death matter venued in Alameda County where Walworth’s client, a refractory contractor, was claimed to have contributed to decedent’s exposure to asbestos, causing him to develop mesothelioma. The evidence established that the contractor had been hired to refresh refractory located inside the firebox of propulsion boilers situated aboard a U.S. Navy ship during an overhaul. While records showed the contractor’s employees performed work on board the ship concurrently with the decedent, Walsworth presented the decedent’s deposition testimony to the court where he denied that he saw anyone performing this repair work. We also presented deposition testimony provided by the plaintiffs’ Certified Industrial Hygienist who opined that if decedent was not present at the time that work was performed on the boilers, he would not have been exposed to asbestos, if any, from that work.
In opposition to the motion for summary judgment, plaintiffs proffered a controverting declaration advancing the re-entrainment theory. The re-entrainment theory purports to support exposure to latent asbestos fibers which remain suspended in the air hours or even days after the work is performed. This theory directly controverted the expert’s opinion at his deposition. Walsworth objected to the controverting declaration as unreliable hearsay and also objected to plaintiffs’ attempt to advance a new and different theory of exposure, pointing to case authority that states that, once deposed, an expert is not permitted to offer new, different opinions at trial. The court sustained the objections and granted the motion for summary judgment.
The defense was represented by Margaret Mahaffey and Anne Gritzer from the San Francisco office.