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Doyle v. Blankenship2/28/2003
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Plaintiff Doyle Blankenship, Jr., appeals from a judgment entered on an order granting summary judgment to defendant, NACCO Materials Handling Group, Inc. (NACCO). The trial court concluded that plaintiff had not presented evidence of sufficient quantity and quality to raise a triable issue of fact as to whether plaintiff's exposure to defendant's products was a substantial factor in causing plaintiff's alleged asbestos-related illness. We reverse.
I. BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed a complaint for personal injury damages alleging that defendant and 76 other named defendants should be held liable for health problems he currently suffers. Plaintiff alleges he was diagnosed with asbestosis and asbestos-related pleural disease in December 1999, although he is still employed and has not suffered any disability due to the disease. Plaintiff, now aged 57 years, worked as a fireman for the U.S. Navy for three years, and has worked for Georgia Pacific Corp. since 1968.
Defendant is the successor-in-interest to Hyster Company. Georgia Pacific purchased clamp trucks and forklifts from Hyster that contained asbestos matter in the brakes and clutches. Plaintiff's core contention as against this defendant is that he worked in close proximity to mechanics who changed the brakes and clutches of the Hyster equipment and used compressed air to blow out brake drums. Plaintiff does not claim he worked directly on the Hyster equipment. Rather, he testified that for 10 years he worked about 100 to 125 feet away from the auto mechanics, in the same large building (about 200 yards long), along with the millwrights, pipefitters and other maintenance workers. Plaintiff testified that he would go to the auto mechanics' shop to do welding work on vehicles; but he could not state specifically whether, while at their shop, he was within 10 feet of any vehicles having brake work done. Nor could he say "with certainty" whether he had ever been physically present when a mechanic was working on the brakes of any Hyster equipment.
Citing plaintiff's discovery responses and deposition testimony, defendant moved for summary judgment contending that the evidence adduced failed to prove its products were a substantial factor contributing to plaintiff's injuries.
In opposition, plaintiff submitted declarations from two auto mechanics who had worked with him. Both stated that during the relevant period, the mechanics were "constantly performing repairs such as brake work," that they performed clutch and brake jobs on Hyster forklifts, and while performing those jobs, "compressed air was used to blow out built up dust and grime and clean the brake areas." The co-workers further averred that plaintiff would often assist the mechanics by performing welding duties and " iven the lay out of the mechanics area, [plaintiff] while welding for us, would be in very close proximity to me and the other mechanics while we were working on facility equipment, including performing brake and clutch work on HYSTER forklifts. In the process, [plaintiff] would be exposed to dust generated by the brake and clutch work we were performing." One worker also explained that there were no "real physical barrier " between the mechanics' area and the rest of the trades located in the building, so "when the outer doors were open, any wind would blow
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