Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 443568
ORDER MODIFYING OPINION
William R. McGuiness, P. J.
THE COURT:
It is ordered that the opinion filed herein on April 30, 2009, be modified as follows:
1. On page 2, the third full paragraph is revised as follows:
Plaintiffs asserted, in opposition to Bechtel’s summary judgment motion, that Short’s asbestos exposure at the Antioch plant was attributable to Bechtel’s design and construction of the plant between 1949 and 1954. Their opposition was supported by an expert declaration from industrial hygienist Kenneth Cohen, who opined that Short was exposed to asbestos dust when he was working at the plant.
2. On page 3, the third sentence of the first full paragraph, delete the word “Dr.” so that the sentence reads:
The court also ordered the parties to identify any evidence on which they relied to distinguish Cohen’s opinion from other California cases that have rejected a finding of liability based upon the theory of reentrainment.
3. On page 3, the first sentence of the third full paragraph, delete the word “Dr.” so that the sentence reads:
The court found that Cohen’s declaration was irrelevant because he lacked the expertise to testify that Bechtel’s design and construction of the Antioch plant were inadequate.
4. On page 8, the first full paragraph, delete the words “Dr.” so that the paragraph reads:
The trial court correctly observed that plaintiffs failed to offer any expert evidence of the prevailing standard of care when the Antioch plant was designed and constructed. Cohen’s declaration does not address the standard of care, and there is no showing that Cohen possesses the relevant expertise to testify on that point. Plaintiffs implicitly admit as much when they restrict their arguments about the Cohen declaration to the admissibility and value of his testimony about “asbestos reentrainment.” While reentrainment, if supported by the facts, might be relevant to causation of Short’s mesothelioma,Cohen’s declaration provides no information as to the standard of care for designers and contractors in the 1940’s and 1950’s and whether Bechtel’s use of asbestos-containing materials in the Antioch plant fell below that standard. The court correctly ruled that plaintiffs failed to discharge their burden of offering competent and admissible evidence establishing Bechtel’s duty and breach. Accordingly, it correctly granted summary judgment.
To be perfectly clear, we express no opinion on the sufficiency or value of the Cohen declaration on that point.
There is no change in the judgment.