California courts have, for years, wrestled with the standard for product identification in asbestos cases. While courts have allowed plaintiffs’ claims to survive summary judgment based on inferences of exposure to a defendant’s product, the inferences favorable to the plaintiff must be more reasonable and probable than the inferences against him or her. Drawing a distinction between a mere possibility of exposure and a probability that may create a triable issue of fact is not always an easy task.
Yesterday, in Collin v. CalPortland Company, 4 C.D.O.S. 8673 (July 31, 2014), the Third District Court of Appeal affirmed summary judgment in favor of two manufacturers because the plaintiff failed to show that the products to which he was exposed contained asbestos, as distinguished from the manufacturers’ similarly-named non-asbestos products. Defendant CalPortland made asbestos-containing plastic gun cement, as well as plastic cement that was asbestos-free. Plaintiff Loren Collin recall CalPortland “plastic cement,” but failed to identify gun cement. The court rejected Collin’s argument that his description of the product – which was similar to gun plastic cement – allowed a jury to infer that the asbestos-containing product was involved; the description was also consistent with the non-asbestos variety of plastic cement.
Similarly, the court affirmed summary judgment in favor of Kaiser Gypsum, which made asbestos-containing joint compound until 1976. Collin recalled working with Kaiser Gypsum’s joint compound sometime between the mid-1950s and 1995, but could not pinpoint the specific year(s) when such exposure occurred.
The court found unpersuasive Collin’s argument that he was probably exposed to the asbestos-containing variety of joint compound because Kaiser Gypsum made it for twenty years, while it only made the asbestos-free product for only two years.
By contrast, the court reversed summary judgment in favor of a third defendant which sold asbestos cement pipe in 1983, because the plaintiff claimed to have been exposed to their products in the “early 1980s.”
While it does not change the basic principles of California law governing product identification, Collin reinforces plaintiffs’ obligation to specify the details of their alleged exposure to defendants’ products. This includes stating the time period during which the exposure occurred, as well as providing an accurate description of the product so as to distinguish it from potentially asbestos-free varieties. The case is also notable for its rejection of the plaintiff’s argument that exposure to Kaiser Gypsum’s asbestos-containing products was more likely than not based on the fact that it was manufactured for a longer time than the asbestos-free product. Without the use of such probability-based product identification theories to resist summary judgment, it may become more difficult for plaintiffs to show that their case rests on permissible inferences rather than impermissible speculation.