Judge: Bruce G. Iwasaki, Case: 20STCV45382, Date: 2025-05-29 Tentative Ruling

Case Number: 20STCV45382    Hearing Date: May 29, 2025    Dept: 14

SUPERIOR COURT OF THE STATE OF CALIFORNIA¿¿  

FOR THE COUNTY OF LOS ANGELES  

DEPARTMENT 14¿ 

¿ 

[TENATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT OR

IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION

I.                Background

On November 24, 2020, Plaintiffs Gerald and Ethelma Feigner filed their complaint for personal injury alleging Mr. Feigner developed mesothelioma from occupational exposure to asbestos and asbestos-containing products during his work as a longshoreman between 1955 and the 1990s, as well as direct non-occupational exposure to asbestos-containing products from doing automotive and home maintenance. On March 1, 2021, Plaintiffs filed their first amended complaint to add causes of action for maritime negligence and strict liability. On May 14, 2021, Mr. Feigner died. On May 12, 2022, Plaintiffs Ricky Lynn Feigner, Ethelma Feigner, and Tammy Stanaland (“Plaintiffs”) filed a separate lawsuit for wrongful death in case no. 22STCV15952. On August 31, 2022, the court issued an order relating these two cases such that the operative complaint in this case is the May 12, 2022 wrongful death complaint. As against Defendants American President Lines, LLC, Matson Navigation Company, Inc., Maersk B.V., and A.P. Moller Maersk A/S (collectively “Shipping Defendants”), Plaintiffs allege that Mr. Feigner was exposed to raw asbestos and asbestos cement pipes he unloaded from Defendants’ ships as a longshoreman from the 1950s to 1960s.

On February 13, 2025, Shipping Defendants filed joint motions for summary judgment or adjudication arguing that Plaintiffs’ discovery responses are factually devoid as to evidence to support Plaintiffs’ seventh cause of action for negligence of vessel under 33 U.S.C. § 905 subdivision (b), eighth cause of action for loss of consortium, and Plaintiffs’ claim for punitive damages. In the alternative, Defendant moves for summary adjudication as to four individual theories of liability under Plaintiffs’ seventh cause of action, Plaintiffs eighth cause of action, and claim for punitive damages.

On April 24, 2025, the parties stipulated to continue the hearing on this motion for summary judgment to May 27, with opposition due on May 13 and Reply due on May 22. On May 13, Plaintiffs filed their opposition. On May 20, the court continued the hearing to May 29 to accommodate the court’s limited availability on May 27. On May 22, 2025, Shipping Defendants filed their reply. On May 29, 2025, the court held a hearing.

The court grants Shipping Defendants’ motion for summary judgment. As such, Shipping Defendants’ motions for summary adjudication are moot.

II.             Evidentiary Objections

Defendants’ Objections:

Sustained:

1. Exhibit 2 to the Seitz declaration, “a true and correct copy of Fleischer, et al., “A Health Survey of Pipe Covering Operations in Constructing Naval Vessels”, JOURNAL OF INDUSTRIAL HYGIENE AND TOXICOLOGY (Vol. 28, no. 1, Jan. 1946) [SOA 5754]” is irrelevant and inadmissible hearsay.

The article is irrelevant. It describes the health effects of asbestos in piping used in Naval shipyards in the 1940s. Plaintiffs fail to connect the conclusions of this article to the product types (asbestos cement pipe, raw asbestos) or time period (1950s to 1960s) at issue in this case. The article lacks any tendency in reason to prove any disputed fact that is of consequence to the determination of the action.

Even if relevant, the article is inadmissible hearsay. Plaintiff argues: “This article is not hearsay because it is not being offered for the truth of the matter asserted.” (Seitz Decl. ¶ 3.) Plaintiffs argue that this document is being used to establish Defendants’ notice and therefore is not relied upon for the truth of the matters asserted therein. (See Evid. Code § 1200.)

 This argument is misplaced. Here, the article is not being used for notice purposes because it would only be relevant for notice if its assertions were true. Reliance on the article for Shipping Defendants’ notice of the hazards of asbestos inherently presupposes the truth of the matters within the document. As Defendant argues, the date of publication is a material fact within the document which Plaintiffs rely upon for their notice argument. Plaintiffs also rely on the factual assertion within the article, namely that asbestos pipe-covering has deleterious impacts on human health, to show that Shipping Defendants had notice of those facts. Accordingly, the court finds that Plaintiffs are relying upon this out of court statement for the truth of the matters asserted therein, and as such the document is hearsay. Plaintiffs present no evidence or argument regarding the applicability of a hearsay rule exception,

2. Exhibit 3 to the Seitz declaration, “a true and correct copy of Selikoff, et al., ‘Asbestos Exposure and Neoplasia’, JAMA (Vol. 188, no. 1, April 6, 1964) [SOA 5883]” is inadmissible as hearsay, or in the alternative, is irrelevant for the same reasons identified in no. 1. The court’s rationale with regards to hearsay is identical; Plaintiffs do not simply rely on this document for notice, but instead rely upon the document for the truth of the matters asserted therein in addition to Defendants’ notice of those facts.

As to relevance, this document speaks to risks of mesothelioma to “Building trades insulation workers.” The document does not on its face discuss any of the product types at issue in this case, or draw any obvious connection showing that Defendants’ knowledge of the risks of asbestos to tradesmen working with insulation would translate to a knowledge of the risks of asbestos to longshoremen. Accordingly the court excludes this document as irrelevant, or in the alternative, inadmissible hearsay.

Not relied upon:

3-8. Defendants’ objections 3-8 pertain to specific passages of the deposition testimony of Mr. Feigner which are pertinent to the issue of causation and specifically whether Mr. Feigner sufficiently identified asbestos containing materials he unloaded from Defendants’ ships. For reasons described elow, the court’s analysis of this motion does not rely on any arguments regarding causation because the court finds Plaintiffs failed to present evidence sufficient to give rise to a triable issue of material fact as to the existence of a duty between Shipping Defendants and Mr. Feigner. Therefore, the court need not issue rulings on these objections.

III.           Discussion

A.    Legal Standards

A defendant seeking summary judgment must “conclusively negate[] a necessary element of the plaintiff’s case, or . . . demonstrate[] that under no hypothesis is there a material issue of fact that requires the process of trial.”  (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 334.)  To show that a plaintiff cannot establish an element of a cause of action, a defendant must make the initial showing “that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)  “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action.  The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence – as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”  (Id. at p. 855.) “ ‘If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiff’s factually devoid discovery responses.’ ”  (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1440.)

B.    Negligence of Vessel under Longshore and Harbor Workers’ Compensation Act 33 U.S.C § 905

Under federal maritime law, a longshoreman may bring a claim for negligence against the owner of a vessel under certain circumstances. In Howlett v. Birkdale Shipping Co. S.A. (1994) 512 U.S. 92, the United States Supreme Court stated that there were four circumstances in which the vessel owner could be liable to a longshoreman under the Longshore and Harbor Workers’ Compensation Act (“Longshore Act”; 33 U.S.C. § 905 subdivision (b).) The Court held: “the starting point in this regard must be our decision in [Scindia Steam Nav. Co., Ltd. v. De Los Santos (1981) 451 U.S. 156] which outlined the three general duties shipowners owe to longshoremen. The first, which courts have come to call the ‘turnover duty,’ relates to the condition of the ship upon the commencement of stevedoring operations. [Citation.] The second duty, applicable once stevedoring operations have begun, provides that a shipowner must exercise reasonable care to prevent injuries to longshoremen in areas that remain under the ‘active control of the vessel.’ [Citation.]. The third duty, called the ‘duty to intervene,’ concerns the vessel's obligations with regard to cargo operations in areas under the principal control of the independent stevedore. [Citation.] (Howlett v. Birkdale Shipping Co., S.A. (1994) 512 U.S. 92, 98.) As to the fourth duty, the Court held: “A corollary to the turnover duty requires the vessel to warn the stevedore ‘of any hazards on the ship or with respect to its equipment,’ so long as the hazards ‘are known to the vessel or should be known to it in the exercise of reasonable care,’ and ‘would likely be encountered by the stevedore in the course of his cargo operations[,] are not known by the stevedore[,] and would not be obvious to or anticipated by him if reasonably competent in the performance of his work.’ [Citation.] ”(Howlett, supra, 512 U.S. at p. 99.)

Shipping Defendants argue that they are entitled to summary judgment because Plaintiffs’ discovery responses are factually devoid as to evidence that the shipping companies violated any duties enumerated under Howlett or Scindia. Specifically, Defendants argue:  “It is undisputed that Feigner was working as a longshoreman during the time Plaintiffs claim he was exposed to asbestos on Defendants’ ships. UMF 1, 43, 60, 76, 93, 94. As such, his employer was responsible for ‘install[ing], furnish[ing], maintain[ing], and us[ing]’ whatever ‘devices and safeguards’ that were ‘reasonably necessary’ to protect him from the hazards associated with working around the asbestos to which he was allegedly exposed while unloading cargo aboard Defendants’ ships. See, 33 U.S.C. § 941. Moreover, Defendants were entitled to rely on Feigner’s employer to do so.” (Motion at p. 6.)

1.     Defendants’ Burden: Showing that Plaintiffs’ Discovery Responses are Factually Devoid

Plaintiffs’ discovery responses are factually devoid as to evidence to support their cause of action for negligence under the Longshore Act. In support of its argument that Plaintiffs’ discovery responses were factually devoid, Shipping Defendants submit Plaintiffs’ responses to requests for admission, form interrogatories, special interrogatories, and requests for production. (See Milack Decl. Exs. I-X.) As Plaintiffs argue in opposition, the discovery most pertinent to this motion is Defendants’ special interrogatory no. 1 which asked Plaintiffs to state: “all facts upon which YOU base YOUR contention that [individual Shipping Defendant] was negligent with respect to DECEDENT.” (See Milack Decl. Exs. Q, R, S, T at p. 2.) As Plaintiff admits in their opposition, “Plaintiffs’ responses are similar for all Defendants.” (Opposition at p. 8.) In response to these special interrogatories, Plaintiffs state:

“Gerald Feigner worked as a longshoreman, he loaded and unloaded every kind of cargo ships that passed through Los Angeles Harbor. As part of Mr. Feigner’s work, he unloaded burlap bags of raw asbestos including Cape Asbestos, Advocate Mines and Colonial Sugar Refining (“CSR”) asbestos, when handled, the bags produced visible dust Mr. Feigner worked in and breathed on numerous occasions. Shipments of raw asbestos came into the Port of Los Angeles regularly a number of times per year. As a young longshoreman, Mr. Feigner often worked these dirty jobs the older more experienced longshoremen did not want to work.

“In the 1950s, 1960s and 1970s, Mr. Feigner unloaded rubber that came from various places in the world. The rubber came packed with talcum powder on the rubber to keep it separated. The handling, loading and unloading of the rubber created visible dust from the talcum powder that Mr. Feigner worked in and breathed. Mr. Feigner unloaded rubber shipments numerous times over the years. The rubber shipments came in several times per year. Additionally, Mr. Feigner unloaded Kubota asbestos cement pipe from the 1960s until the 1980s…

“At the time he was working with these products there were no warnings, written instructions, nor recommendations regarding the hazards of asbestos on the products or packaging. As a result, Decedent was unaware of his need for any type of safety devices to specifically reduce his possible exposure to, or inhalation of, asbestos from the aforementioned asbestos-containing products.

“At the time of his employment, Mr. Feigner’s employer did not inform him of the hazards of the products with which he was working. Mr. Feigner testified that although he was sometimes informed of what various cargo was, Mr. Feigner testified that he was not warned about the hazards and risk to health of such asbestos-containing products. (Id. 103-104). During this period, Mr. Feigner testified that he and workers such as himself did not know of the severity of the dangers of asbestos, and there was no “scuttlebutt” about the risks asbestos could have on the health of workers like himself. (Id. 103-108). As such, Plaintiffs have no evidence that the employer knew of such hazards. Defendants did not inform Decedent's employer about the hazardous materials that longshoremen, such as Decedent, would be exposed to in the course of his duties.” (See e.g. Milack Decl. Ex. Q, Plaintiffs’ response to Defendant American President Lines Special Interrogatories at pp. 3-4.)

Defendants also direct the court’s attention to Mr. Feigner’s deposition testimony. Mr. Feigner’s pertinent deposition testimony identifies four specific ships he recalls working on.  Two of the ships he recalls working with belonged to Defendant Matson Navigation Company. (Milack Decl. Ex. H, Feigner Depo, at 316:4-8, 13-15 [“Q. Okay. Can you tell me the name of one Matson ship that you believe you were exposed to asbestos on? A. I worked Matson ships. My first ship, ironically, was the Hawaiian Farmer… But Hawaiian Farmer. And there was several other Hawaiian ships. Farmer, Rancher.”] Mr. Feigner further identified two specific ships which belonged to Defendant American President Lines. (Milack Decl. Ex. H, Feinger Depo, at 325:25-326:5 [“But what I'm asking you for, sir, is the names of ships that you recall -- the names of APL ships that you recall working on. A. Harding, Coolidge. It was -- it was a president's name, and there was a bunch of them by -- at that time. Even 40 years ago, 50 years ago.”] Plaintiffs do not dispute that Mr. Feigner did not specifically identify working with any vessels which belonged to Defendants Maersk B.V. or A.P. Moller but argues that Mr. Feigner did identify “Nedlloyd” vessels and alleges that Maersk B.V. is a successor in interest to Nedlloyd for some vessel liabilities. (See Plaintiffs response to Separate Statement no. 14; Seitz Decl. Ex. 1, Feigner Depo, at 60:8-13 [“What shipping lines, if any, do you know shipped asbestos? A. Whoa, memory. Hang on. The shipping lines. The -- there was a couple of Lloyds. Nedlloyd, Hapag-Lloyd, Zim.”] Separately, Mr. Feigner stated that worked Maerk ships “by process of elimination” and that while he could not recall any specific names of ships he worked, he knew he worked Maersk ships. (Milack Decl. Ex. H Feigner Depo at 330:14-23 [“Can you tell me the name of one Maersk ship that you unloaded burlap bags with the word ‘Asbestos’ on them from? A. That's -- that's -- it's -- that's a question that is -- I worked 'em all, and I worked all of Maersk ships that came into the harbor by process of elimination.”].)

Mr. Feigner repeatedly stated he could not recall any specific ships from which he unloaded asbestos or asbestos cement pipe. (See e.g. Milack Decl. Ex. H Feigner Depo at 328:6-9 [“There is no notation of memory thing here to jog or unjog. I didn't -- I can't quote a specific ship with a specific cargo 50, 60 years later.”].) Mr. Feigner did generally state that he “worked all of that cargo” with regard to asbestos containing cargo shipped by American President Lines. (Id. at 326: 11-19 [“A. I worked 'em all. It -- it would be a blur to figure out, at any time in my thinking, of a commodity and a time and a pier and a -- something happened 50 years ago. I know I worked all of that cargo. I got dirty many times from cargos, and I worked that line. The odds are by limiting -- I -- I worked it, Which -- I worked it.”].)

Based on the foregoing, Plaintiffs argue they have presented sufficiently specific facts that their discovery responses cannot be considered factually devoid. Specifically, Plaintiffs argue:  “These responses contain Plaintiffs’ factual allegations as to Defendants which Defendants do nothing to dispute. There is no evidence provided by Defendants that they should not have known of the hazards of asbestos during that time period, or evidence that a reasonable stevedore would have known of the hazards. In fact, Mr. Feigner, who worked as a longshoreman for 35 years, did not know and was not told of the hazards. These are not factually devoid responses, and thus Defendants must present evidence, which they have not done.” (Opposition at p. 8.)

In reply, the Shipping Defendants alter their initial argument somewhat. They contend that Plaintiff has failed to show causation. Shipping Defendants first argue that Plaintiffs’ discovery responses were factually devoid as to evidence of  exposure to an asbestos containing product for which Shipping Defendants are responsible. (Reply at p.3 [“Through Mr. Feigner’s own testimony, Defendants demonstrated that Plaintiffs cannot identify a single ship owned or operated by these Defendants on which Gerald Feigner was exposed to asbestos. Separate Statement of Undisputed Material Facts and Evidence in Support of Defendants American President Lines, LLC, Matson Navigation Company, Inc., Maersk B.V., and A.P. Moller Maersk A/S’ Motion for Summary Judgment or Summary Adjudication (“Defendants’ SSUMF”) at Undisputed Material Facts (“UMF”) 11-15. Without evidence of exposure, Plaintiffs cannot establish the causation element of the only cause of action they assert against Defendants – a negligence claim under Section 905(b) of the Longshore and Harbor Workers’ Compensation Act.”].)

Second, Shipping Defendants again address their arguments on lack of duty. They reiterate that Plaintiffs’ discovery responses are factually devoid as to specific facts supporting the Shipping Defendants’ duties to Mr. Feigner under the Longshore Act. (Reply at pp. 3-5.)

Because the causation argument was not raised in Shipping Defendants’ notice of motion, the court cannot rule on these arguments without an opportunity for further briefing. “A court may consider a legal issue not tendered in the moving papers if it is based on properly presented undisputed facts and the opposing party has an opportunity to respond to the legal issue unearthed by the court.” (Weil & Brown et al., Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2024) § 10:95.7 [citing Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 69]) Therefore, before the court may address this argument, the court would need to provide Plaintiffs an opportunity to address this argument. Accordingly, the court moves on to Defendants’ arguments which were fully briefed and properly brought before the court.

Apart from considering the issue of causation, the court finds that Plaintiffs’ discovery responses are factually devoid regarding specific facts supporting their cause of action for negligence under the  Longshore Act because Plaintiffs fail to identify specific facts supporting their allegation regarding Defendants’ actual or constructive knowledge of asbestos hazards during the 1950s to 1960s exposure period at issue. Each of the enumerated duties under 33 U.S.C. section 905(b) required Shipping Defendants to have had actual or at least constructive knowledge of the hazards posed by asbestos. (See Howlett, supra, 512 U.S. at pp. 99-99.) However, nowhere in Plaintiffs’ extensive written discovery responses to any of the moving Defendants’ requests for admission, form interrogatories, special interrogatories, or requests for production do Plaintiffs identify any specific factual basis for their allegation that Defendants knew or should have known in the mid to late 1950s or 1960s that the shipment of these products was hazardous to longshoremen like Mr. Feigner.  

At most, Plaintiffs state: “At the time of his employment, Mr. Feigner’s employer did not inform him of the hazards of the products with which he was working. Mr. Feigner testified that although he was sometimes informed of what various cargo was, Mr. Feigner testified that he was not warned about the hazards and risk to health of such asbestos-containing products. (Id. 103-104). During this period, Mr. Feigner testified that he and workers such as himself did not know of the severity of the dangers of asbestos, and there was no “scuttlebutt” about the risk asbestos could have on the health of workers like himself. (Id. 103-108). As such, Plaintiffs have no evidence that the employer knew of such hazards. Defendants did not inform Decedent's employer about the hazardous materials that longshoremen, such as Decedent, would be exposed to in the course of his duties.” (See e.g. Milack Decl. Ex. J, Plaintiffs’ responses to form interrogatory 17.1 by Defendant American President lines, at p. 14.)

This interrogatory response, and the deposition testimony from Mr. Feigner it cites, establishes only that Mr. Feigner did not know of the hazards of asbestos in the 1950s and 1960s. (See also Seitz Decl. Ex. 1, Feigner Depo, at p. 103:10-24. [“Were you warned about asbestos regarding any of these products? Did anybody -- DEFENSE COUNSEL Assumes facts. Speculation. No foundation. MR. ARCHER. Hold on. I'm not done. I'm not finished. DEFENSE COUNSEL. Sorry. Sorry.  BY MR. ARCHER: Q. ‘This stuff has asbestos in it, and it'll kill you.’ Did anybody say anything like that -- A. Nothing like that. Q. -- ever -- A. No. Q.-- about these products?”].)

Moreover, it is an undisputed fact on this motion that Mr. Feigner’s employer did not know of the hazards of asbestos. (Separate Statement no. 37 [“Plaintiffs have no evidence that Feigner’s employer was aware of the hazards of asbestos at the time Feigner allegedly worked on Defendants’ vessels.”].) As to Shipping Defendants, the sum of the conclusory allegations is that Defendants’ failed to inform Mr. Feigner or his employer of those risks. Plaintiffs failed to provide a basis for Defendants’ actual or constructive knowledge of these risks in their discovery responses, as is evident by Plaintiffs’ responses to separate statements nos. 28-31 citing to additional documents produced in opposition to Shipping Defendants’ motion for summary judgment rather than citing to materials produced in discovery. (See e.g., Plaintiffs Response to Separate Statement no. 28 [“Defendants at the time of Decedent’s exposure in the 1950s and 1960s knew or should have known about the hazards of asbestos. The famous Fleischer-Drinker report detailing the health effects from exposure to asbestos pipe insulation came out in 1946. (Ex. 2.) By 1964, the Journal of the American Medical Association was publishing influential asbestos researcher Dr. Irving Selikoff regarding the link between asbestos and cancers of the lung and pleura. (Ex. 3.) Plaintiffs’ experts at trial will discuss at length other examples of documents which should have put defendants on notice regarding the hazards of asbestos.”] Therefore, these discovery responses provide no factual basis or reasonable inferences deducible from those facts to support their allegations that Shipping Defendants had actual or constructive knowledge of the risks of asbestos exposure to Mr. Feigner or others similarly situated. Accordingly, Defendant satisfies its initial burden to show that Plaintiffs’ discovery responses are factually devoid, and therefore the burden passes to Plaintiffs to establish a triable issue of material fact as to their cause of action for negligence under 33 U.S.C. section 905(b).  

2.     Plaintiffs’ Burden

Plaintiffs fail to satisfy their burden to establish a triable issue of material fact as to Defendants’ actual or constructive knowledge of the risks of asbestos during the relevant 1950s to 1960s period at issue. In their opposition, Plaintiffs focus exclusively on the “duty to warn” theory of negligence under 33 U.S.C. section 905(b). Plaintiffs argue: “The facts here, in the light most favorable to Plaintiffs, are that Defendants could have known, or at least should have known, about the hazards of asbestos in the 1950s and 1960s, turned over their vessels in an unsafe condition with free asbestos dust in the cargo hold, and did not warn Mr. Feigner of the danger. Mr. Feigner was a longshoreman for 35 years and did not recognize the dangers, and thus they were not obvious to a skilled stevedore. It is an undisputed fact that there is no evidence that Mr. Feigner’s employers were aware of the hazards of asbestos. (SUMF 37.) That is sufficient evidence for the jury to determine that Defendants breached their duty of care to Mr. Feigner under section 905.” (Opposition at p. 9.)

In support of Plaintiffs’ argument that Defendant knew or should have known about the risks of asbestos during the 1950s to 1960s time period, Plaintiffs present two documents. The first is a research article entitled “A Health Survey of Pipe Covering Operations in Constructing Naval Vessels” which purports to be from 1946 and discusses the results of “An industrial health inspection of an important U.S. Navy Contract Yard” and makes the following findings: “1. The character of asbestos pipe covering industry on board naval vessels is such that conclusions drawn from other asbestos industries such as textiles, cannot be applied responsible. 2. The operations of band saw cutting, grinding, cement mixing, and installation on board ship should be equipped with exhaust ventilation to keep the total dust concentration. 3. The incidence of asbestosis among pipe coverers in the shipyards studied was low, 0.29 per cent or 3 cases out of 1074. In view of the nature of shipyard pipe covering work, this low incidence is not surprising. 4. Since each of the 3 cases of asbestosis had worked at asbestos pipe covering in shipyards for more than 20 years, it may be concluded that such pipe covering is not a dangerous occupation.” (Seitz Decl. Ex. 2 at p. 16.)

Plaintiffs’ second document is an article entitled “Asbestos Exposure and Neoplasia” which purports to be from 1964. (Seitz Decl. Ex. 3.) The study found: “Building trades insulation workers have relatively light, intermittent, exposure to asbestos. Of 632 insulation workers, who entered the trade before 1943 and were traced through 1962, forty-five died of cancer of the lung or pleura, whereas only 6.6 such deaths were expected. Three of the pleural tumors were mesotheliomas ; there was also one peritoneal mesothelioma. Four mesotheliomas in a total of 255 deaths is an exceedingly high incidence for such a rare tumor. In addition, an unexpectedly large number of men died of cancer of the stomach, colon, or rectum (29 compared with 9.4 expected). Other cancers were not increased; 20.5 were expected, 21 occurred. Twelve men died of asbestosis.” (Id. at p. 22.)  

In reply, Defendant argues that the foregoing evidence is inadmissible. For the reasons described in Part II, the court sustains these objections. Accordingly, Because the pertinent evidence Plaintiffs rely on to establish Shipping Defendants’ knowledge of asbestos hazards is inadmissible, Plaintiffs fail to present sufficient admissible evidence to establish a triable issue of material fact as to their cause of action for negligence under 33 U.S.C. section 905(b). Therefore, Shipping Defendants’ motion for summary judgment is granted.

IV.           Conclusion

Shipping Defendants’ motion for summary judgment is granted. Defendants’ motions for summary adjudication as to Plaintiffs’ eighth cause of action for loss of consortium and claim for punitive damages are moot. Shipping Defendants are ordered to submit a proposed judgment within five days. Moving parties are ordered to give notice of this ruling.