137 Wn. App. 233, Feb. 2007 Allen v. Asbestos Corp.

[No. 57723-9-I. Division One. February 12, 2007.]

GARY D. ALLEN , Appellant , v. ASBESTOS CORPORATION , LTD . ET AL ., Defendants , UNIROYAL , INC ., Respondent .

[1] Judgment - Summary Judgment - Review - Role of Appellate Court. An appellate court reviews a summary judgment by engaging in the same inquiry as the trial court and will affirm the judgment only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.

[2] Judgment - Summary Judgment - Review - Matters Considered - Affidavits - Personal Knowledge. An appellate court reviewing a summary judgment may consider supporting affidavits and other admissible evidence that is based on the affiant's personal knowledge.

[3] Judgment - Summary Judgment - Burden on Nonmoving Party - Averment of Specific Facts - Unsupported Assertions. Mere allegations, denials, opinions, or conclusory statements may not be relied on to establish the existence of a genuine issue of material fact for trial.

[4] Judgment - Summary Judgment - Burden on Moving Party - Shifting Burden to Nonmoving Party. A party moving for summary judgment has the initial burden of showing the absence of an issue of material fact. If the moving party meets this burden, the nonmoving party must set forth specific facts establishing a genuine issue of material fact for trial in order to withstand summary judgment.

[5] Judgment - Summary Judgment - Determination - Interpretation of Facts. In deciding a motion for summary judgment, a court considers the facts submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party.

[6] Judgment - Summary Judgment - Evidentiary Rulings - Review - Standard of Review. A trial court's evidentiary decisions made in the course of a summary judgment proceeding are reviewed under the manifest abuse of discretion standard. Although a ruling on a motion to strike is discretionary with the trial court, the court may not consider inadmissible evidence when ruling on the motion for summary judgment.

[7] Products Liability - Product Identification - Necessity - Asbestos - Circumstantial Evidence. A plaintiff claiming damages for an asbestos-related illness may rely on circumstantial evidence that the defendant's products were the source of the plaintiff's exposure to asbestos.

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[8] Products Liability - Causation - Asbestos - Sufficiency of Evidence - Factors. Whether there is sufficient evidence of causation in an action for injuries allegedly caused by exposure to asbestos depends on (1) the plaintiff's proximity to the asbestos product when the exposure occurred; (2) the expanse of the work site where asbestos fibers were released; (3) the extent of time the plaintiff was exposed to the product; (4) the types of asbestos products to which the plaintiff was exposed; (5) the ways in which the plaintiff handled and used the products; (6) expert testimony on the effects of inhalation of asbestos on human health in general and on the plaintiff in particular; and (7) evidence of any other substances that could have contributed to the plaintiff's disease (and expert testimony as to the combined effect of exposure to all possible sources of the disease).

[9] Products Liability - Causation - Asbestos - Sufficiency of Evidence - Proximity and Time. For purposes of determining the sufficiency of the evidence of causation in an action for injuries allegedly caused by exposure to asbestos, the factors of proximity to the asbestos product at the time of exposure and the duration of the exposure are satisfied if the evidence shows that the plaintiff worked at a job site where asbestos products were used and expert testimony shows that asbestos fibers have the ability to disperse over the entire area of the workplace.

[10] Products Liability - Causation - Asbestos - Sufficiency of Evidence - Defendant's Sales Records - Totality of Evidence. In an action for injuries allegedly caused by an exposure to asbestos originated in a workplace, whether sales records showing that the employer purchased asbestos products during the period of time that the plaintiff was allegedly exposed are sufficient to support an inference that an exposure occurred is determined in light of the totality of the evidence.

[11] Products Liability - Causation - Asbestos - Sufficiency of Evidence - Parent's Exposure to Defendant's Product. In an action for injuries allegedly resulting from exposure to asbestos brought home from work by a parent on his or her clothes, evidence of sales records showing that the parent's employer repeatedly purchased increasing amounts of the defendant's asbestos products during the time that the parent worked for the employer and expert testimony that the parent would have been exposed to asbestos if the defendant's asbestos products were used anywhere in the workplace are sufficient to raise a triable issue of fact on the issue of causation.[12] Evidence - Hearsay - Ancient Document - Authentication - Criteria - Document in Likely Place - Testimony of Witness Having Actual Knowledge of Document's Creation - Necessity. The ER 901(b)(8)(ii) criterion for authenticating an ancient document that the document was in a place where it, if authentic, would likely be may be satisfied by evidence sufficient to

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support a finding that the document is what its proponent claims it to be. The testimony of a witness having knowledge about the document's creation is not required.

[13] Evidence - Hearsay - Ancient Document - Authentication - Criteria - Document At Least 20 Years Old - Sufficiency of Evidence - Undisputed Declaration. An undisputed declaration that a document was obtained by the declarant more than 20 years prior is sufficient to satisfy the ER 901(b)(8)(iii) criterion for authenticating an ancient document that the document has been in existence 20 years or more at the time it is offered.

Nature of Action: A lung cancer patient sought damages from the manufacturer of an asbestos-containing product and others on a claim that his lung cancer was caused by asbestos dust that his father brought home from work on his clothes. The plaintiff's father worked at a naval shipyard for 25 years as an insulator. The plaintiff submitted sales records showing that the shipyard purchased repeated and increasing amounts of products containing asbestos from the defendant's predecessor during the time that his father was employed at the shipyard.

Superior Court: After granting the defendant's motion to strike many of the plaintiff's exhibits, the Superior Court for King County, No. 04-2-15394-8, Linda Lau, J., on October 31, 2005, entered a summary judgment in favor of the defendants.

Court of Appeals: Holding that the plaintiff presented sufficient evidence to raise a genuine issue of material fact as to whether the plaintiff's father was exposed to asbestos products manufactured by the defendant's predecessor and that the trial court erred by excluding properly authenticated ancient documents that support the inference that the father's employer used the predecessor's asbestos products during his time of employment, the court reverses the judgment and remands the case for further proceedings.

William J. Rutzick and Janet L. Rice (of Schroeter Goldmark & Bender ), for appellant .

Chris R. Youtz (of Sirianni Youtz Meier & Spoonmore ), for respondent .

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¶1 COLEMAN, J. - Gary Allen sued Uniroyal, Inc., among others, claiming his exposure to asbestos dust from Uniroyal predecessor United States Rubber Company's asbestos-containing products caused his lung cancer. Uniroyal moved for summary judgment, alleging that Allen had insufficient evidence of causation, and the trial court granted the motion. Allen claims that the trial court erred in granting summary judgment because he raised an issue of material fact and the trial court should have admitted certain pieces of evidence that would have precluded summary judgment. We agree that, drawing all reasonable inferences in his favor as the nonmoving party, Allen presented sufficient evidence to raise a genuine issue of material fact as to whether Allen's father was exposed to Uniroyal products. Summary judgment was erroneously granted, and we therefore reverse and remand for trial.

FACTS

¶2 Allen sued Uniroyal, alleging that his lung cancer was caused by, inter alia, asbestos dust from a product manufactured by Uniroyal predecessor United States Rubber Company«1»that his father brought home from work on his clothes. Allen testified that his father worked at Puget Sound Naval Shipyard for 25 years as an insulator. Allen submitted sales records showing that the shipyard purchased Uniroyal products containing asbestos during the time that his father was employed there.


«1»Although the product at issue was manufactured by the United States Rubber Company, we refer to this product as a Uniroyal product or by its brand name, "Asbeston," in this opinion.


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¶3 Uniroyal moved to strike many of Allen's exhibits, and the trial court granted the motion in part. Uniroyal also moved for summary judgment, arguing that Allen had not raised a genuine issue of material fact because he had not put forward sufficient evidence that his father had ever been exposed to Uniroyal products. The trial court granted summary judgment, and Allen now appeals both the summary judgment order and the order granting in part Uniroyal's motion to strike.

STANDARDS OF REVIEW

[1-5]¶4 When reviewing a summary judgment order, we engage in the same inquiry as the trial court.

We will affirm an order granting summary judgment only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In reviewing summary judgment orders, we consider supporting affidavits and other admissible evidence that is based on the affiant's personal knowledge. A party may not rely on mere allegations, denials, opinions, or conclusory statements, but, rather must set forth specifics indicating material facts for trial.

Int'l Ultimate, Inc. v. St. Paul Fire & Marine Ins. Co. , 122 Wn. App. 736 , 744, 87 P.3d 774 (2004) (footnotes omitted). The party moving for summary judgment has the initial burden of establishing the absence of an issue of material fact. Young v. Key Pharms., Inc. , 112 Wn.2d 216 , 225, 770 P.2d 182 (1989). If the moving party meets this burden, in order to withstand summary judgment, the nonmoving party must set forth specific facts establishing a genuine issue for trial. Young , 112 Wn.2d at 225 -26. "The evidence and all reasonable inferences therefrom must still be examined in the light most favorable to the nonmoving party to determine if there are genuine issues of material fact for trial." Weatherbee v. Gustafson , 64 Wn. App. 128 , 132, 822 P.2d 1257 (1992).

[6]¶5 A trial court's evidentiary rulings, on the other hand, are reviewed for manifest abuse of discretion. Int'l

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Ultimate , 122 Wn. App. at 744 . Although the trial court has discretion to rule on a motion to strike, a " 'court may not consider inadmissible evidence when ruling on a motion for summary judgment.' " Int'l Ultimate , 122 Wn. App. at 744 (quoting King County Fire Prot. Dist. No. 16 v. Hous. Auth. , 123 Wn.2d 819 , 826, 872 P.2d 516 (1994)).

ANALYSIS

Evidence of Allen's Father's Exposure to Uniroyal Products

¶6 Uniroyal moved for summary judgment on the grounds that Allen had offered insufficient evidence of his father's exposure to Uniroyal products. Allen argues that because he offered evidence showing that Uniroyal asbestos cloth was purchased by the shipyard, the trial court should have inferred that the cloth was thereby used at the shipyard. Allen considers this inference of exposure to be reasonable and argues that the trial court was required to resolve all reasonable inferences in his favor when considering Uniroyal's motion for summary judgment.

[7, 8]¶7 Asbestos plaintiffs in Washington may establish exposure to a defendant's product through circumstantial evidence. Lockwood v. AC&S, Inc. , 109 Wn.2d 235 , 744 P.2d 605 (1987). Lockwood established factors that a court should consider to determine whether sufficient evidence of causation exists: (1) plaintiff's proximity to the asbestos product when the exposure occurred, (2) the expanse of the work site where asbestos fibers were released, (3) the extent of time plaintiff was exposed to the product, (4) what types of asbestos products the plaintiff was exposed to, (5) how the plaintiff handled and used those products, (6) expert testimony on the effects of inhalation of asbestos on human health in general and the plaintiff in particular, and (7) evidence of any other substances that could have contributed to the plaintiff's disease (and expert testimony as to the combined effect of exposure to all possible sources of the disease).

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[9]¶8 The proximity and time factors can be satisfied if there is evidence that the plaintiff worked at a job site where asbestos products were used, particularly where there is expert testimony that asbestos fibers have the ability to drift over an entire job site. See , e.g. , Berry v. Crown Cork & Seal Co. , 103 Wn. App. 312 , 324, 14 P.3d 789 (2000). In Berry , shipyard employees testified that they ordered the defendant's asbestos products for use at the shipyard, and the plaintiff's experts testified that asbestos fibers can drift over an entire shipyard, such that anyone who worked anywhere at the shipyard is exposed if asbestos is used there. Berry , 103 Wn. App. at 324 . Plaintiff's experts also opined that asbestos exposure led to plaintiff's death. Berry , 103 Wn. App. at 324 . The defendant moved for summary judgment, and

[t]he critical issue for purposes of summary judgment was whether the plaintiffs raised an issue of material fact as to whether Berry was exposed to Brower products while employed at PSNS [Puget Sound Naval Shipyard]. According to Lede's 1984 affidavit, Brower supplied some of the insulation products used at PSNS during both periods (1942 and 1945-50). Moreover, Downey's 1984 testimony that he saw Plant and Carey products "almost every day" during the seven years (1941-48) in which he worked at PSNS, in conjunction with Bradley's testimony that Brower was "a distributor" for Plant and Carey products, raises an issue of fact as to whether Berry was exposed to Brower-supplied products during the time frames in question.

Saberhagen argues that Lede's affidavit leads to impermissible speculation because the plaintiffs do not provide evidence as to "how much or how often PSNS purchased products from Brower , as opposed to Bartells or others." Similarly, Saberhagen claims that Downey's and Bradley's testimony does not support an inference of exposure because "Downey did not say who supplied the Plant and Carey products to PSNS" and "Bradley said nothing to suggest that Brower had ever been the sole source for those products either in 1942 or any other time." We reject Saberhagen's argument. Lede's testimony was that local distributors such as Brower were the first source of supplies for small amounts or immediate needs. Plaintiff's

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evidence is sufficient to raise an inference that Brower products were used at PSNS during the time periods in question. The extent to which Brower supplied the products as compared with other distributors is irrelevant for purposes of summary judgment.

Berry , 103 Wn. App. 324 -25.

[10, 11]¶9 As in Berry , the central issue on summary judgment here is whether Allen raised an issue of material fact as to whether his father was exposed to Uniroyal products while working at the shipyard. Also like Berry , Allen presented expert testimony that if asbestos cloth was used anywhere at Allen's father's workplace, Allen's father would have been exposed to it because the asbestos dust would have drifted throughout the workplace.

¶10 As evidence of use, Allen put forward evidence of three sales orders of Asbeston (an asbestos cloth) in 1958, 1959, and 1960. Uniroyal admits that these orders were made but claims that they do not give rise to an inference because there is no evidence that the Asbeston was ever used at the shipyard while Allen's father was there. Uniroyal argues that to infer that the Asbeston was used from the sales records alone amounts to impermissible speculation and, thus, there was no genuine issue of material fact as to whether Allen's father was exposed to Asbeston.

¶11 But the sales records establish that large quantities of Asbeston were ordered by the shipyard over multiple years. Uniroyal has not explained why the shipyard would order such large quantities of a product it did not use, especially when the orders were placed over a period of time. We conclude that it would be reasonable from this record to infer that Asbeston was used at the shipyard. Because of Allen's expert testimony that if Asbeston was used, Allen's father would have been exposed, the inference that Asbeston was used at the shipyard leads directly to the inference that Allen's father was exposed to Uniroyal's product. In the trial court's consideration of Uniroyal's motion for summary judgment, Allen was entitled to have

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all reasonable inferences drawn in his favor. The inference of use and exposure is reasonable and is sufficient to raise an issue of material fact; thus, we conclude that the trial court erred in granting summary judgment.

¶12 We acknowledge that only one court has relied solely on sales records to infer exposure. See Richoux v. Armstrong Cork Corp. , 777 F.2d 296 (5th Cir. 1985).«2»And it is true, as Uniroyal points out, that other courts have held that sales records alone are not enough to establish exposure under the facts presented in those cases. See Lohrmann v. Pittsburgh Corning Corp. , 782 F.2d 1156 (4th Cir. 1986); Hansen v. N.Y. City Housing Auth. , 271 A.D. 986, 68 N.Y.S.2d 71, 73 (1947); Booth v. AC&S , 2003 0511 (La. App. 4 Cir. 08/22/03), 854 So. 2d 979. Those cases, however, do not establish a bright-line rule that sales records are not enough to support an inference of exposure. The courts there engaged in fact-specific inquiries to determine - in the context of all the evidence - whether sales records can support that inference. In Lohrmann , the court concluded that sales records from one manufacturer did not support the inference of exposure to that manufacturer's products where the plaintiff had testified that he was exposed to asbestos products made by other manufacturers. In Hansen , the court concluded that invoices of asbestos materials to various buildings did not support an inference that plaintiff was exposed because the plaintiff had not established when he worked at those buildings or that he would have been exposed if he had been working there when the materials were used. And in Booth , the court concluded that an invoice of asbestos tape to a job site in 1967 could not support an inference that the plaintiff was exposed to that product when he worked


«2»Allen cites other cases where sales records have supported an inference of exposure. In those cases, there was also additional evidence, usually in the form of testimony from the plaintiff or other co-workers identifying the asbestos product and describing its use at the workplace. See Covalt v. Carey Canada, Inc. , 950 F.2d 481 (7th Cir. 1991); Zielinski v. A.P. Green Indus., Inc. , 2003 WI App 85, 263 Wis. 2d 294, 661 N.W.2d 491; Thacker v. UNR Indus., Inc. , 213 Ill. App. 3d 38, 572 N.E.2d 342, 157 Ill. Dec. 272 (1991); Rocco v. Johns-Mansville Corp. , 754 F.2d 110 (3d Cir. 1985). Because such additional evidence was not present in this record, we do not consider these cases to be analogous here.


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there in 1969. So while it is true that courts have concluded that sales record evidence was not enough to support an inference, each court examined the sales records in light of the totality of the evidence in the case to reach that conclusion. We apply that approach here.

¶13 Here, the timing and amounts of the sales permit the reasonable inference that Asbeston was used at the shipyard. The first shipment was a "trial" amount of 100 linear yards in 1958, while the second two shipments over the next two years were for amounts significantly larger (13,391 pounds in 1959 and 5,880 pounds in 1960). The repeated and increasing amount of orders suggests that the product was being used. Because it is reasonable to infer that Uniroyal's product was used at the shipyard and there is opinion testimony in the record that if the product was used Allen's father was exposed, the court erred in granting summary judgment because Allen established the existence of an issue of material fact.«3»

¶14 Due to our disposition of this case, we need not consider Allen's appeal of the trial court's evidentiary issues. We elect to do so, however, for clarity in the event that this evidence is proffered at trial.

Exhibit 9

¶15 Allen argues that the trial court erred in striking exhibit 9 as lacking authenticity because he put forward evidence of where the exhibit had been stored and when it was obtained. Exhibit 9 is a collection of documents with a cover sheet. Allen's attorney described this exhibit in a


«3»Uniroyal also argues that summary judgment was appropriate on the ground that Allen presented insufficient evidence that he inhaled asbestos dust from his father's clothes, particularly because there was insufficient evidence that any dust would have been from a Uniroyal product. But Allen testified in a deposition that he carried his father's work clothes home from the bus stop and stood nearby while his father shook dust off of them, and Allen's expert opined that this exposure was more likely than not a substantial factor causing Allen's cancer. Given that we conclude that the evidence supports a reasonable inference that Allen's father was exposed to Uniroyal products, Allen's deposition and expert testimony raise a genuine issue of material fact as to whether Uniroyal products were a substantial factor causing Allen's cancer. Therefore, this is not an appropriate ground for summary judgment.


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declaration as a "true and correct copy of Puget Sound Naval shipyard document pertaining to 'Asbeton [sic] or equal' on the IWO JIMA stating that the proposal was approved '18 Mar 1960.' " Allen offered this exhibit as evidence linking the Uniroyal product Asbeston with the shipyard at the time his father worked there, but Uniroyal moved to strike the exhibit as hearsay and for lack of proper authentication.

¶16 Allen claimed that the exhibit was admissible under the ancient documents exception to the hearsay rule ( ER 803(a)(16)), but the trial court ruled that Allen had failed to authenticate the exhibit as an ancient document. The day before the summary judgment hearing, Allen submitted a declaration from an attorney, Kirk Mortensen, who was formerly associated with his counsel's law firm, stating that he received copies of the documents in exhibit 9 either directly from the shipyard or from the Sand Point facility in 1981 after reviewing the originals himself.

[12, 13]¶17 To properly authenticate an ancient document, a party must show that it: "(i) is in such condition as to create no suspicion concerning its authenticity, (ii) was in a place where it, if authentic, would likely be, and (iii) has been in existence 20 years or more at the time it is offered." ER 901(b)(8). According to Uniroyal, Allen did not meet the second and third requirements because there was no evidence that the documents were found in a place where they would have been if they were authentic, and there was also no independent evidence of the documents' age (other than the dates on the documents themselves). Uniroyal also presented evidence that the shipyard did not have any record of documents similar to the collection in exhibit 9.

¶18 Despite Uniroyal's argument to the contrary, the second requirement of ER 901(b)(8) does not require a shipyard employee to testify to where the documents were kept or found, but the rule only requires evidence sufficient to support a finding that the document is what its proponent claims it to be. See , e.g. , Lockwood , 109 Wn.2d at 250 -51. Mortensen stated in a declaration that he found the

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documents either at the shipyard or at the national archives in Sand Point (where older shipyard documents were stored) - and Uniroyal did not dispute that either of these locations is where authentic shipyard documents would likely be stored. Uniroyal's argument that ER 901(b)(8) requires testimony from someone with personal knowledge regarding the creation of a document is misplaced - the case it cites to support this position is actually analyzing a different authentication evidence rule, ER 901(b)(1), which does require testimony of a witness with knowledge. ER 901(b)(8) sets out the criteria for determining the authenticity of ancient documents, and none of those factors requires testimony of a witness with knowledge about the document's creation.

¶19 As to the age of the evidence, the third requirement of ER 901(b)(8), Uniroyal did not present any evidence disputing that the dates on the documents themselves were inaccurate. Furthermore, Mortensen's declaration stated that he had collected these documents in 1981, which was more than 20 years before the time the exhibit was offered. Thus, Allen met all three authentication requirements for exhibit 9 by making a prima facie showing of all three criteria for authenticity of ancient documents, and the trial court erred in striking it.

¶20 While we have concluded that the inference of Asbeston use is reasonable based on the evidence that the trial court admitted, exhibit 9 - which should have been admitted - further supports the inference. The proposal, approved in 1960 (after the shipyard had already placed orders of Uniroyal asbestos cloth Asbeston), recommends using Asbeston or an equal product. The cover letter to this proposal states that an unspecified asbestos cloth was then used extensively to insulate pipes, and the proposal recommends using the cloth also for ventilation ducts on a particular project. These documents support the inference that the shipyard used Asbeston, rather than just storing it, after it ordered the product in 1958. This relevant evidence should not have been excluded by the trial court because it

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was properly authenticated, and we therefore reverse this evidentiary ruling.

¶21 For the foregoing reasons, we reverse and remand for trial.

¶22 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions.\

SCHINDLER , A.C.J., and BAKER , J., concur.

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