Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1990)

In re ASBESTOS LITIGATION Eastern District of California.Della WRIGHT, Judy Wright, Plaintiffs-Appellants,v.SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant,andJohn Crane-Houdaille, Defendant-Appellee.

No. 89-15082.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 13, 1990.Decided April 26, 1990.

Before BOOCHEVER, WIGGINS, and NOONAN, Circuit Judges.


MEMORANDUM* 

Della and Judy Wright, mother and daughter, appeal the district court's summary judgment for John Crane-Houdaille, Inc. in the Wrights' products liability action stemming from the asbestos-related death of Richard Wright. The sole issue on appeal is whether appellants carried their burden of producing evidence that Richard Wright came into contact with Crane's asbestos. We have jurisdiction under 28 U.S.C. § 1291 (1982). Because appellants present only the most tenuous evidence that Crane's asbestos-containing products were used at Richard Wright's particular job site, we affirm.

BACKGROUND

John Crane-Houdaille manufactured gasket and valve-packing materials containing asbestos in the past. These types of materials were commonly used in the repair of steam and diesel locomotive engines. Richard Wright worked for Southern Pacific Transportation Company from 1938 until 1974. During part of that time he repaired steam and diesel locomotive engines. Richard Wright died from mesothelioma, a lung cancer "predominantly associated with exposure to asbestos fibers." Roehling v. National Gypsum Co. Gold Bond Building Products, 786 F.2d 1225, 1226 n. 2 (4th Cir. 1986).

Appellants sued Southern Pacific and twenty-two companies they alleged supplied the asbestos which caused Richard Wright's death. Three years later, Crane successfully moved for summary judgment on the basis of appellants' alleged inability to produce evidence that Richard Wright worked with Crane's asbestos-containing materials, rather than only with other suppliers' asbestos-containing products.

DISCUSSION

We review de novo a district court's grant of summary judgment. California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988).

To withstand summary judgment in an asbestos case, a plaintiff must produce evidence which puts the manufacturer's product at the victim's job site within his employer's facility. Roehling, 786 F.2d at 1228; Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985).

Appellants have presented substantial evidence that Southern Pacific used Crane asbestos-containing valve-packing materials. For example, Paul Howard Hawkins, a machinist employed by Southern Pacific, testified that he used Crane asbestos-containing packing materials at Southern Pacific's Dunsmuir, California facility. James W. Carroll, who was involved in the purchase of materials for Southern Pacific, testified that Southern Pacific has purchased John Crane packing materials since 1947. Another Southern Pacific worker, Kenneth Edwin Painter, testified that Southern Pacific purchased John Crane valve and gasket materials in the 40's and 50's.

But appellants have produced little evidence that Southern Pacific used Crane asbestos-containing materials at its Sacramento facility--the facility where Richard Wright worked. Neither Mr. Hawkins, Mr. Carroll, nor Mr. Painter specifically stated that John Crane asbestos-containing materials were used in the Sacramento yard. Similarly, Robert Evans, whom appellants identified as a witness who could provide evidence that Richard Wright worked with Crane products, testified that he never saw Crane asbestos-containing materials at Southern Pacific's Sacramento Facility. And Peter J. Filios, who testified that "Crane" materials were present in the Sacramento yard, was referring to valves (which did not contain asbestos) produced by the Crane Valve Company, rather than to asbestos-containing gasket and valve-packing material produced by the unrelated John Crane-Houdaille Company.

The only evidence in the record of Crane asbestos-containing materials' presence at Southern Pacific's Sacramento facility is in the following response by Southern Pacific to an interrogatory propounded by Crane:

John Crane-Houdaille, Inc. supplied Southern Pacific Transportation Company with various types of valve packing and gasket materials used in the repair of steam and diesel locomotive passenger cars and buildings throughout the Southern Pacific System to include the Sacramento general shops.

This interrogatory response, however, is not sufficient to raise a triable issue of fact as to whether Richard Wright came into contact with Crane asbestos-containing products in his workplace. Crane correctly points out that the response does not specify the time period in which Crane supplied Southern Pacific with the materials in question. Likewise, appellants have presented no evidence specifying the time during which Richard Wright worked on steam and diesel locomotive engines at Southern Pacific. Crane also points out that the interrogatory response does not specify the area in which Crane products were used at the Sacramento facility.1 

Perhaps one could logically infer from this response that Crane's asbestos-containing materials were used at Richard Wright's job site because these types of materials would be used only in an area for servicing steam and diesel locomotive engines. And perhaps one can infer from the context of Crane's interrogatory to Southern Pacific (which asked for facts upon which Southern Pacific was entitled to be indemnified by Crane for its liability to appellants), that the response referred to the time period and location in which Richard Wright repaired locomotive engines for Southern Pacific in Sacramento.

But when Crane asked appellants to identify witnesses who could support the claims made in the interrogatory response, appellants identified only Mr. Evans. And, as we noted above, Mr. Evans was not, in fact, able to place Crane's asbestos-containing products at Richard Wright's job site. Similarly, appellants have pointed to no testimony which places Crane's asbestos-containing products at Richard Wright's job site by any of the witnesses whom Southern Pacific identified as able to support the claims made in the interrogatory response.

We are, of course, aware that in asbestos cases, where the liability causing events occur decades before a victim's injury becomes apparent, it is quite difficult for a plaintiff to discover direct evidence of causation. But appellant has simply failed to develop a record sufficient to withstand summary judgment.

The judgment of the district court is AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

Crane also attacks the personal knowledge of Mr. Fitzpatrick, the Southern Pacific employee who verified its interrogatory response. However, at this stage of the proceeding this attack is without merit. Evidence need not be admissible at trial to be sufficient to withstand summary judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Furthermore, the interrogatories were answered by the Southern Pacific Transportation Company in its corporate capacity, not by Mr. Fitzpatrick individually. True, Mr. Fitzpatrick verified the responses. But Crane points to no authority for the proposition that an employee may verify his employer's interrogatory responses only if he has personal knowledge of every fact discussed in those responses. Indeed, in many instances no one employee of a company would have personal knowledge of every fact discussed in his employer's interrogatory responses