O'Leary v. Dillingham Construction CA1/1

Filed 2/18/16 O’Leary v. Dillingham Construction CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

BETTY O’LEARY, Plaintiff and Appellant, A142848 v. DILLINGHAM CONSTRUCTION N.A., (San Francisco City & County INC., Super. Ct. No. CGC-11-275803) Defendant and Respondent.

Plaintiff Betty O’Leary has maintained this action for asbestos exposure on behalf of her late husband, Michael O’Leary (O’Leary). One of the many defendants, Dillingham Construction N.A., Inc. (Dillingham), moved for summary judgment. The pivotal issue was whether the insulation swept into the air by Dillingham laborers in the early 1970’s, near where O’Leary was working, contained asbestos. Plaintiff’s expert, a certified asbestos consultant, reviewed a physical description of the insulation and employed his special knowledge of insulation materials use in and around the early 1970’s. He had “no doubt” the insulation O’Leary inhaled contained asbestos. The trial court, however, ruled the expert’s opinion was too speculative and excluded it. Without this testimony, plaintiff had no evidence the insulation contained asbestos, and therefore no case. The trial court therefore granted summary judgment to Dillingham. Plaintiff appeals, challenging the trial court’s rejection of her expert’s testimony. We conclude the declaration was sufficient, and reverse.

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BACKGROUND The only evidence of O’Leary’s exposure to insulation dust comes from his former colleague, James Hetzel, who authored a declaration in opposition to Dillingham’s motion for summary judgment. According to Hetzel, he and O’Leary were riggers “from the 1970s into the late 1980s . . . at the Tosco Refinery, Avon, CA where [they] worked on shut-downs.” O’Leary was Hetzel’s supervisor. O’Leary not only inspected the work of Hetzel’s crew, he also did “hands-on work” alongside him. During rigging work, they disturbed insulation on heavy equipment. Also, many other workers around them would, during shut-downs, disturb “the old insulation on” nearby “steam lines and large machinery.” During the “early to mid 1970s,” Hetzel saw Dillingham employees sweep “dust and debris from the old thermal insulation that had been removed from steam lines and large machinery” at times as close as five or 10 feet from O’Leary. The “old insulation was white to off-white, the outer part would be darker in color from age, it was crumbly and brittle and there were visible fibers when you see the broken pieces up close.” This insulation was “a different color and texture to what . . . was patched on piping and equipment much more recently.” Plaintiff’s expert Charles Ay is a state-certified asbestos consultant who has been inspecting residential, commercial, and industrial buildings for asbestos for over 30 years, since 1984. Before that, Ay worked for 25 years, from 1956 until 1981, as an insulator in refineries, power plants, other buildings, and ships where he had experience with a wide range of both asbestos-containing and asbestos-free insulation products. For his state certification, Ay keeps current with asbestos literature and completes mandatory continuing education annually. He has taken numerous courses in how to identify asbestos-containing material. Additionally, Ay has “researched materials used to make insulation, and ha[s] examined and tested” for asbestos “various types of insulation