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California Court Rejects Plaintiffs' Expert Opinion and Grants Railroad Summary Judgment Under FELA on Lack of Causation Court of Appeal of California, Second Appellate District, Division Four, June 24, 2015

In this California case, the decedent was allegedly exposed to asbestos while working for a railroad as a switchman, conductor, and brakeman, later developing mesothelioma. Specifically, the decedent claimed exposure was from changing railcar brake shoes, being in the vicinity of insulation removal from refrigerator cars, and staying in a boarding house run by the railroad that had insulation-covered pipes in the room where he slept. The defendant railroad moved for summary judgment, arguing “that plaintiffs were required but failed to prove negligence under FELA, that plaintiffs did not have and could not provide evidence to establish Thoms’ exposure to asbestos while employed by BNSF, and that plaintiffs’ claims were preempted by the Locomotive Boiler Inspection Act and the Safety Appliance Act.”
 
In support of the motion, the railroad relied on industrial hygienist opinions, the decedent’s testimony, and work records. The court concluded that the railroad met its burden with respect to no causation: “BNSF’s ‘discovery was ‘sufficiently comprehensive, and plaintiffs’ responses so devoid of facts, as to lead to the inference that plaintiffs could not prove causation upon a stringent review of the direct, circumstantial and inferential evidence contained in their interrogatory answers and deposition testimony.’ [Citation.]’ (Casey, supra, 206 Cal.App.4th at p. 1231.) Thus, BNSF successfully shifted the burden to plaintiffs to show a triable issue of material fact as to his exposure to asbestos during his employment with BNSF.”
 
The court granted summary judgment because the plaintiffs could not raise an issue of trial fact, rejecting the plaintiffs’ expert’s opinions: “The fatal flaw in Templin’s declaration is that it fails to provide any evidence to show that the brakes to which Thoms was exposed, or the insulation in refrigerator cars or on the pipes at the Harvey House, actually contained asbestos. Templin’s statement that railway car brakes contained asbestos prior to the late 1970s is far too general to create an issue of material fact.”

Read the full decision here.

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