Opinion
No. 59377-3-I.
June 2, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-2-40939-0, Douglass A. North, J., entered November 9, 2006.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Agid and Ellington, JJ.
On summary judgment, in order to establish a material issue of fact based on expert testimony, the expert's opinion must be supported by admissible facts. Rose Callahan and Maureen Lansford, individually and as the personal representative of the Estate of Patrick Callahan (collectively "Callahan"), appeal summary judgment dismissal of Callahan's personal injury lawsuit against Saberhagen Holdings, Inc. (Saberhagen) and denial of the motion for reconsideration. Saberhagen argues there is no admissible evidence that Patrick Page 2 Callahan was ever exposed to any asbestos-containing products supplied by either Saberhagen or its predecessor, the Brower Company. Callahan's epidemiology expert relied on the deposition testimony of Patrick Callahan and a former Brower employee to conclude Patrick Callahan was exposed to asbestos-containing Brower products when he worked at the shipyards from 1943-1945. Because the trial court did not abuse its discretion in striking the deposition of Callahan and the former Brower employee, we conclude the trial court did not err in disregarding the expert testimony that was not based on admissible facts, and affirm.
Callahan does not appeal the trial court's dismissal of his construction site exposure claims against Saberhagen.
FACTS
Patrick Callahan and his spouse, Rose Callahan, filed a personal injury lawsuit against Saberhagen Holdings, Inc. (Saberhagen) and others, alleging that Patrick Callahan was exposed to asbestos-containing products supplied by Saberhagen's predecessor, the Brower Company (Brower), when he worked as an electrician from 1943-45 at the Lake Washington, Lake Union, and Todd shipyards. Callahan also alleged that he was exposed to a number of asbestos products when he worked in the construction industry from 1950-70. As a result of asbestos exposure, Patrick Callahan developed mesothelioma, a fatal asbestos-related cancer. After Patrick Callahan passed away on January 21, 2005, the Callahan's daughter, Maureen Lansford, individually and as the personal representative of the Estate joined the lawsuit.
The Todd Shipyard was also known as the Seattle-Tacoma Shipyard.
Maureen Lansford is Rose and Patrick Callahan's daughter. Patrick Callahan died of mesothelioma while the lawsuit was pending. We refer to Rose Callahan and Maureen Lansford collectively as "Callahan."
Following discovery, Saberhagen filed a motion for summary judgment, arguing that because there was no admissible evidence that Patrick Callahan was exposed to Brower supplied asbestos products he could not prove causation.
In opposition, Callahan argued that admissible evidence showed Patrick Callahan was exposed to asbestos-containing Brower products while working as an electrician at the Lake Washington, Lake Union, and Todd shipyards from 1943-45. Callahan relied on the Plaintiff's Answers to Interrogatories, Patrick Callahan's incomplete deposition, Patrick Callahan's social security records, the deposition of Eugene Dana, a former Brower employee in another case, Eugene and Patricia Burnstin v. Owens-Illinois, et. al, King County Cause No. 96-2-25676-5, and the expert testimony of Dr. Samuel Hammar, a pathologist and Dr. Nicholes Heyer, an epidemiologist.
In testifying that Callahan was exposed to asbestos-containing Brower products while working at the Lake Washington, Lake Union and Todd shipyards, Dr. Heyer relied on Patrick Callahan's deposition testimony and Dana's testimony in Burnstin. Callahan argued that Dr. Heyer reasonably relied on the deposition testimony of Patrick Callahan and Dana in forming his opinion about Patrick Callahan's exposure to Brower products. Callahan also argued Dana's testimony that Brower supplied asbestos-containing products to the shipyards was admissible because Saberhagen had a similar motive and opportunity to cross examine Dana in the Burnstin case.
In response, Saberhagen asserted Patrick Callahan's deposition was inadmissible because Saberhagen did not have a meaningful opportunity to cross examine him before he died. Saberhagen also argued that the 1997 deposition of Eugene Dana in the Burnstin case was inadmissible. Because the plaintiff in Burnstin only worked at Todd Shipyard, Saberhagen asserted that it had no motive in that case to question Dana about the presence of Brower products at the Lake Washington and Lake Union shipyards where Patrick Callahan worked.
The trial court granted Saberhagen's motion to exclude Callahan's incomplete deposition and the Plaintiff's Answer to Interrogatories as inadmissible hearsay. The court also ruled that the opinions of Dr. Heyer that were based on inadmissible evidence were "entitled to no weight." The trial court then dismissed Callahan's claims against Saberhagen.
As part of the motion for reconsideration, Callahan submitted a second declaration from Dr. Heyer. In the second declaration, Dr. Heyer states that "?from an epidemiologic and industrial hygiene perspective, Patrick Callahan's exposure to asbestos as a result of asbestos-containing products used and/or supplied by Brower at Lake Washington and Lake Union shipyards standing alone, would have been sufficient to cause mesothelioma to an individual such as Mr. Callahan.'" Dr. Heyer also states that the deposition testimony of Patrick Callahan and Dana are "the kind of documents that epidemiologists and industrial hygienists commonly rely upon in non-litigation situations to render opinions as to causes of diseases in human beings." In denying the motion for reconsideration, the court again noted that it "gave no weight to some opinions which are without support of admissible evidence on the record."
ANALYSIS
Callahan contends the trial court erred in disregarding the expert testimony that established Callahan worked at Todd Shipyard and the presence of asbestos-containing Brower products at the shipyards where Callahan worked from 1943-45. Callahan also contends the trial court erred in excluding Dana's deposition under ER 804 (b)(1); in dismissing the lawsuit against Saberhagen on summary judgment; and in denying Calllahan's motion to reconsider.
Callahan does not appeal the trial court's decision to strike the incomplete deposition testimony of Patrick Callahan or Plaintiff's Answers to Interrogatories.
We review the trial court's evidentiary rulings for manifest abuse of discretion. Allen v. Asbestos Corp., Ltd., 138 Wn. App. 564, 570, 157 P.3d 406 (2007). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds or reasons. Wick v. Clark County, 86 Wn. App. 376, 382, 936 P.2d 1201 (1997).
We review summary judgment de novo and engage in the same inquiry as the trial court. Heath v. Uraga, 106 Wn. App. 506, 512, 24 P.3d 413 (2001). Summary judgment is proper only if the pleadings, depositions, answers, and admissions, together with the affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). In reviewing summary judgment, we consider supporting affidavits and other admissible evidence based on personal knowledge. A party may not rely on allegations, denials, opinions, or conclusory statements, but must set forth specific 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). The moving party bears the burden of proving there are no genuine issues of material fact. CR 56(c); Smith v. Preston Gates Ellis, LLP, 135 Wn. App. 859, 863, 147 P.3d 600 (2006). We view the facts and reasonable inferences in a light most favorable to the nonmoving party. Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). If the moving party establishes the absence of an issue of material fact, the nonmoving party must set forth specific facts establishing a genuine issue for trial. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). Summary judgment is appropriate if in view of all the evidence, reasonable persons could reach only one conclusion. Hansen v. Friend, 118 Wn.2d 476, 485, 824 P.2d 483 (1992).
Washington law allows a plaintiff to establish exposure to a defendant's products through the testimony of witnesses who are able to identify the manufacturers of the asbestos products that were present at the plaintiff's worksite. Lockwood v. A C S, Inc., 109 Wn.2d 235, 246-47, 744 P.2d 605 (1987). Lockwood identifies the factors a court should use to determine whether sufficient evidence of causation exists.
The Lockwood factors are:
(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 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).
Lockwood, 109 Wn.2d. at 248.
Here, the question is whether Callahan submitted admissible evidence establishing an issue of material fact as to whether Patrick Callahan was exposed to asbestos-containing Brower products while working at the Lake Washington and Lake Union shipyards from 1943-45.
Expert Testimony
Callahan asserts that the trial court abused its discretion by disregarding Dr. Heyer's testimony that Patrick Callahan worked at Todd Shipyard and was also exposed to asbestos-containing Brower products while working as an electrician at the Lake Washington and Lake Union shipyards from 1943-45. Callahan contends Dr. Heyer's testimony was admissible under ER 703.
In Allen, we expressly considered and rejected the exact same argument, and held that because an expert's opinion on summary judgment must be supported by admissible evidence, the trial court did not abuse its discretion in not considering inadmissible hearsay as substantive evidence. Allen, 138 Wn. App. at 570. See also, Group Health Cooperative, Inc. v. Dep't of Revenue, 106 Wn.2d 391, 399, 722 P.2d 787 (1986) ("The trial court may allow the admission of otherwise hearsay evidence and inadmissible facts for the purpose of showing the basis of the expert's opinion. The admission of these facts, however, is not proof of them."); Hash v. Children's Orthropedic Hosp. Med. Ctr., 49 Wn. App. 130, 134-135, 741 P.2d 584 (1987); (expert opinion on summary judgment must be based on admissible facts in the case); In re Young, 122 Wn.2d 1, 857 P.2d 989 (1993) (the experts relied on hearsay as the basis of a prediction of behavior, not to prove the past events); In re Detention of Marshall, 156 Wn.2d 150, 125 P.3d 111 (2005) (the expert relied on records of the type usually relied on by professionals in the field to form an opinion that an inmate was a sexually violent predator, not to prove the past behavior). As we explained in Allen, under ER 703:
A trial court may allow the admission of otherwise hearsay evidence and inadmissible facts for the purpose of showing the basis of the expert's opinion. The admission of these facts, however, is not proof of them.
If an expert states the grounds upon which his opinion is based, his explanation is not proof of the facts which he says he took into consideration. His explanation merely discloses the basis of his opinion in substantially the same manner as if he had answered a hypothetical question.
Callahan's reliance on Sunbreaker Condo. Ass'n v. Travelers Ins. Co., 79 Wn. App. 368, 901 P.2d 1079 (1995) is misplaced. In Sunbreaker, there was no dispute that the windstorms had occurred. But the expert was allowed to express his opinion about the probable effects of windstorms on the damage to the condominium. Sunbreaker, 79 Wn. App. at 373-74.
Allen, 138 Wn. App. at 590 (quoting, State v. Wineberg, 74 Wn.2d 372, 382, 444 P.2d 787 (1968)).
In Allen, the plaintiff, Gary D. Allen filed a personal injury lawsuit against Uniroyal and others, claiming that exposure to Uniroyal's asbestos-containing products which caused lung cancer. Allen, 138 Wn. App. at 568. In opposition toUniroyal's motion for summary judgment, Allen relied on Dr. Heyer's testimony to prove the presence of Uniroyal products and argued that "even though Dr. Nicholas Heyer relied on inadmissible documents and information to reach his expert opinion, such reliance is permitted under ER 703. . . ." Allen, 138 Wn. App. at 579. The trial court granted Uniroyal's motion to strike a portion of Dr. Heyer's declaration concerning the use of Uniroyal's products at the shipyard and Allen's exposure from that product. As part of his declaration, Dr. Heyer stated:
Based on the above materials as well as my training experience and literature that I have read, it is my opinion that asbestos was a cause of Mr. Allen's lung cancer and that part of that asbestos exposure resulted from exposure to asbestos cloth manufactured by United States Rubber Company, including 'Asbeston' cloth used at PSNS in the 1950's and 1960's.
In concluding that the trial court did not err in striking the portions of Dr. Heyer's testimony that relied on inadmissible hearsay, we held that while under ER 703 an expert can rely on inadmissible facts for the limited purpose of explaining the basis for an opinion, those facts cannot be considered as substantive evidence. Allen, 138 Wn. App. at 581.
The trial court excluded the testimony of Hugh Tefft, Monty Anderson, and John Northey — the shipyard workers who testified about using Uniroyal products — and Heyer's reference to this excluded testimony cannot be considered substantive evidence establishing the use of Uniroyal products at the shipyard.
We conclude that the trial court did not err in striking a portion of Heyer's declaration because paragraphs 7 through 9 contain Heyer's opinion about factual matters outside his industrial hygiene and epidemiology expertise — namely, whether Uniroyal products were present or used at PSNS. The stricken portion is admissible only for the limited purpose of explaining the basis for Heyer's medical opinion. Thus, we conclude that the trial court properly excluded that portion of Heyer's opinion as substantive evidence.
Allen, 138 Wn. App. at 581.
Here, in opposition to Saberhagen's motion for summary judgment, Callahan submitted excerpts from Dr. Heyer's deposition and his declaration. Relying on the partial deposition of Patrick Callahan, Plaintiff's Answers to Interrogatories, and the deposition of Dana, a former Brower employee, in the Burnstin case, Dr. Heyer testified that asbestos-containing Brower products were present when Patrick Callahan was working at the Todd, Lake Washington, and Lake Union shipyards. The court ruled that Plaintiff's Answers to Interrogatories, the incomplete deposition of Patrick Callahan and Dana's deposition were inadmissible. The court disregarded the opinions of Dr. Heyer that were not based on admissible facts and granted Saberhagen's motion for summary judgment.
In the motion to reconsider, Callahan submitted a second declaration from Dr. Heyer. In the second declaration, Dr. Heyer states that Patrick Callahan's exposure to Brower products at the Lake Washington and Lake Union shipyards "standing alone" was sufficient to cause mesothelioma.
In my opinion, from an epidemiologic and industrial hygiene perspective, Patrick Callahan's exposure to asbestos as a result of asbestos-containing products used and/or supplied by Brower at Lake Washington and Lake Union shipyards standing alone, would have been sufficient to cause mesothelioma to an individual such as Mr. Callahan.
As in Allen, Callahan seeks to rely on inadmissible hearsay to establish the truth of the matter asserted-that he worked at Todd and asbestos-containing Browerproducts were used at the Lake Washington, Lake Union and Todd shipyards from 1943-45. We adhere to our decision inAllen and conclude that Dr. Heyer's testimony about whether Patrick Callahan worked at Todd Shipyard and the presence of Brower asbestos-containing products at the Lake Washington and the Lake Union shipyards is inadmissible hearsay that cannot be considered as substantive evidence. Allen, 130 Wn. App. at 581 n. 45. We conclude the trial court did not abuse its discretion by deciding to disregard Dr. Heyer's testimony to the extent it was not supported by admissible evidence in the record.
Dr. Hammar's Testimony
For the first time on appeal, Callahan also asserts that Dr. Samuel Hammar's testimony provides substantive evidence that Callahan worked at the Lake Washington, Lake Union, and Todd shipyards from 1943-45. Relying on Smith v. Showalter, 47 Wn. App. 245, 248, 734 P.2d 928 (1987) andLamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 588 P.2d 1346 (1979), Callahan contends that "where no objection or motion to strike is made prior to entry of summary judgment, a party is deemed to waive any deficiency in the affidavit." Showalter, 47 Wn. App. at 248. Callahan argues that because Saberhagen did not move to strike Dr. Hammar's testimony, Saberhagen has waived any deficiency in that testimony on appeal. But a party cannot rely on inadmissible evidence to establish the existence of material facts. "Jones v. Dep't of Health, 140 Wn. App. 476, 494-95, 166 P.3d 1219 (2007). And on summary judgment, we examine the record de novo. Folsom v. Burger King, 135 Wn.2d 658, 958 P.2d 301 (1998). Here, while Dr. Hammar's testimony is part of the record in the trial court, so is Saberhagen's argument that the inadmissible evidence that an expert relies on cannot be used as substantive evidence to establish factual matters outside the witness's expertise.
Dr. Hammar testified that in his opinion as a pathologist, Patrick Callahan's occupational exposure contributed to causing his mesothelioma. But Dr. Hammar expressly testified that he had no information about specific products that were used at the shipyards. And when asked how he knew Patrick Callahan was exposed to asbestos at the shipyards, Dr. Hammar responded,
A. Well, I really don't know that other than that a shipyard is a very common place where people can be exposed to asbestos. . . . This is information I received from the Schroeter Goldmark Bender Law Firm, . . .
Emphasis added.
The record also contains a letter from a legal secretary at the law firm representing Callahan to Dr. Hammar, stating that Patrick Callahan was exposed to asbestos while working at the Lake Washington, Lake Union, and Todd shipyards from 1943-45.
The argument that Saberhagen made below with respect to Callahan's attempt to use Dr. Heyer's testimony to establish where he worked applies with equal force to Callahan's attempt to use Dr. Hammar's testimony for the same purpose on appeal. We conclude Saberhagen has not waived its right to challenge Dr. Hammar's testimony. Based on Allen, we conclude Callahan's argument fails.
Dana Deposition
Callahan asserts that the trial court abused its discretion in striking Dana's deposition under ER 804(b)(1) because Saberhagen had a similar motive in the Burnstin case to develop testimony concerning the presence of Brower products at the Todd, Lake Union and Lake Washington shipyards.
Callahan relied on Dana's deposition testimony in the Burnstin case to establish the presence of asbestos-containing Brower products at Todd Shipyard in the 1940's. Callahan also argued that Exhibit 1 to the deposition, a document prepared by Dana that referred to the Lake Union and Lake Washington shipyards, is admissible to establish the presence of asbestos-containing Brower products at the shipyards noted in the Exhibit.
Evidence Rule 804(b)(1) describes the requirements in order to admit former testimony. ER 804(b)(1) provides:
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
A similar motive under ER 804(b)(1) does not mean an identical motive.State v. DeSantiago, 149 Wn.2d 402, 414, 68 P.3d 1065 (2003). There is no similar motive if a particular fact is critical to the second proceeding but "only peripherally related" to the first proceeding. State v. Mohamed, 132 Wn. App. 58, 66-67, 130 P.3d 401, (quoting U.S. v. DiNapoli, 8 F.3d 909, 912 (2d Cir. (1993)).
In Burnstin, the plaintiff alleged that he was exposed to asbestos-containing products that were manufactured or sold by Brower and other manufacturers when he worked at Todd Shipyard from 1942-43. There is no dispute that the allegations in the Burnstin case were limited to exposure to asbestos-containing products while working at Todd Shipyard. Burnstin identified a former Brower employee, Eugene Dana, as a witness for trial. Dana was deposed. Saberhagen's attorney attended Dana's deposition and had the opportunity to question him.
Dana began working for Brower in 1939 and worked in various shipyards, including the Todd, Lake Washington, and Lake Union shipyards. Dana testified that asbestos-containing Brower materials were used to insulate the pipes on ships at Todd Shipyard. Dana said that he and other workers were exposed to asbestos dust while slamming pieces of pipe into asbestos-containing blocks of insulation.
During his deposition, Dana produced a handwritten document that he had previously prepared listing approximately 145 places that he worked and some of the people he worked with at the different jobsites. Dana said that he prepared this document 10 to 15 years before the deposition, in preparation for another trial. The 16-page handwritten document was marked as Exhibit 1 to the Burnstin deposition.
Saberhagen argues that because it did not have a motive to question Dana in the Burnstin case about the Lake Union and Lake Washington shipyards, Callahan cannot rely on the Dana deposition to establish that Patrick Callahan worked at Todd Shipyard. Callahan argues that Dana's testimony is admissible because the plaintiff Page 15 in Burnstin and Patrick Callahan worked as electricians at Todd Shipyard, they were exposed to asbestos-containing Brower products, and they were both diagnosed with mesothelioma at age 77.
To establish that Patrick Callahan worked at Todd Shipyard, Callahan relies on Plaintiff's Answers to Interrogatories, Patrick Callahan's incomplete deposition, and Dr. Heyer's testimony. Callahan also argues that based on Exhibit 1, to Dana's deposition, "Saberhagen had the opportunity to cross-examine Mr. Dana regarding Brower's insulation work at [Todd], Lake Washington, and Lake Union Shipyards."
Below, Callahan claimed Saberhagen had a motive to establish the accuracy of Exhibit 1. Callahan cited to a reference in Exhibit 1 to the Lake Washington Shipyard and Dana's statement that he had also worked at the Lake Union Shipyard and Lake Washington Shipyard, to argue that Saberhagen had a similar motive to ask about the Lake Washington and Lake Union shipyards. The trial court granted Saberhagen's motion to strike Dana's deposition testimony. The court ruled that Saberhagen did not have a similar motive under ER 804(b)(1) to question Dana about the Lake Washington or Lake Union shipyards in the Burnstin case.
But if we're trying to say that the Brower representatives have the same motive to cross-examine here, isn't it different if — I mean, because in the Burnstin case, he'd only worked at [Todd] Shipyard. And in this case we're talking about somebody who worked at Lake Washington Shipyard.
. . .
I'm trying to understand what motive the Brower representatives would have had, any similar motive or anything, to inquire about the Lake Washington Shipyard when it didn't make any difference in the Burnstin case?
. . .
[I]f you have a guy's summary of his work history and that's introduced as an exhibit and they ask him, well, is this accurate to summarize your knowledge, does this give us a rundown of what you did and where you worked for Brower and all that sort of thing, I'm not seeing how that's establishing that their interest in questioning about Lake Washington Shipyard is the same as questioning about [Todd] Shipyard.
We conclude that the trial court's decision to strike Dana's deposition from the record was not manifestly unreasonable or based on untenable grounds or reasons.
Attorney Fees
Saberhagen asserts we should award it attorney fees under RAP 18.9. RAP 18.9 gives the court discretion to award attorney fees if a party files a frivolous appeal. Because Callahan's appeal is not without merit, we decline to award attorney fees on appeal. State v. Parada, 75 Wn. App. 224, 235, 877 P.2d 231 (1994) (internal quotes omitted).
We affirm.