Judge: Laura A. Seigle, Case: 23STCV01099, Date: 2023-11-07 Tentative Ruling

Case Number: 23STCV01099    Hearing Date: March 28, 2024    Dept: 15

[TENTATIVE] ORDER RE MOTION FOR SUMMARY JUDGMENT

On January 17, 2023, Plaintiff Alfred Hernandez filed this action alleging that he developed renal cell carcinoma from exposure to asbestos while employed by Defendant BNSF Railway Company.  Defendant filed a motion for summary judgment. 

A.        Objections

See discussion below.

B.        Summary Judgment

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.)  A plaintiff’s deposition testimony that the plaintiff has no knowledge of any exposure to the defendant’s products may be sufficient to shift the burden to the plaintiff to demonstrate the existence of triable issues of fact. (McGonnell v. Kaiser Gypsum Co., Inc. (2002) 98 Cal.App.4th 1098, 1103-1104.)  The plaintiff’s deposition testimony that he did not recall ever working with a product manufactured by the defendant may not be sufficient to shift the burden if the plaintiff is able to prove his case by another means.  (Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439.)  “ ‘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.’”  (Id. at p. 1440.)

In FELA actions, railroad employees (or their representatives) seeking to recover for on-the-job injuries have the right to sue their employer for any injury “ ‘resulting in whole or in part from the negligence’ of the railroad or its employees.”  (Fair v. BNSF Railway Co. (2015) 238 Cal.App.4th 269, 275, quoting Woods v. Union Pacific Railroad Co. (2008) 162 Cal.App.4th 571, 577.)  “The standard under FELA is a relaxed one,” and it is well established that the “evidence required to establish liability in a FELA case is much less than in an ordinary negligence action.”  (Fair, at p. 275.)  The employer is liable where its negligence “played any part, however small, in the injury or death” at issue.  (Rogers v. Missouri Pac. R.R. Co. (1957) 352 U.S. 500, 507–508.)  In interpreting FELA, the United States Supreme Court “has insisted that plaintiffs have a broad primary right to go to the jury on factual issues” and made clear that a plaintiff should “reach the jury on the issue of liability when there is any evidence, ‘even the slightest,’ ” to support his case.  (Jehl v. Southern Pacific Co. (1967) 66 Cal.2d 821, 834, quoting Rogers, at p. 506.)

Defendant argues that Plaintiff cannot prove medical causation because Defendant’s expert’s opinion, Plaintiff’s doctors’ conclusions, and other evidence prove Plaintiff’s renal cancer was not caused by exposure to toxins at work.  (Motion at pp. 1-2.)  

Defendant cites Plaintiff’s testimony that he was first hired as a trackman on March 13, 1972.  (Defendant’s Ex. 3 at p. 56.)  He worked on a project in Cadiz, California for two months as a spiker and then in May 1972 out of Victorville laying new ties.  (Id., at pp. 56-57, 59, 70-71.)  He quit around June 1972, was subsequently rehired on April 24, 1973 as a brakeman, and on May 1, 1978 was promoted to become a conductor.  He worked until his retirement in June 2012.  (Id. at pp. 73-74, 77; Defendant’s Index Ex. 2 at p. 20.)

Plaintiff testified that he touched creosote on railroad ties and it got on his skin and in his mouth.  (Defendant’s Ex. 2 at pp. 41-42.)  He believes he was exposed to diesel exhaust daily from locomotive engines when working in the engine compartment, from idle trains, from deadheading, and from his stay at sleeping facilities near tracks.  (Id.  at pp. 69-70, 76, 79, 86.)  He breathed dust from tapping brake shoes and from trains that rode by.  (Id. at pp. 58, 63-64.)  Though he never had to remove insulation, he came into contact with insulation on the passenger train, in sleeping quarters, and in the diesel facility.  (Defendant’s Ex. 4 at p. 253; Defendant’s Ex. 5 at pp. 494-495.)  He was exposed to silica on every grade run by windows left open on locomotives.  (Defendant’s Ex. 2 at pp. 65-66.)  He was exposed to secondhand smoke on trains or on railroad property, pesticides used to spray trains between 1973 and 1980, and solvents in metal canisters used to clean the caboose.  (Id. at pp. 82-84, 93-95; Defendant’s Ex. 4 at pp. 264-265.)

            Hernandez was diagnosed with renal cell carcinoma in 2021.  (Defendant’s Ex. 1 at p. 6: 17.)  Defendant argues that there is no correlation between Hernandez’s renal carcinoma diagnosis and any alleged asbestos exposure or any other environmental exposure such as diesel exhaust, silica, pesticides, and creosote.  (Opposition at p. 6.)  Defendant cites Dr. Chu’s testimony that a biopsy would be required to determine if Hernandez’s lung nodule was asbestos related.  (Defendant’s Ex. 8 at p. 47.)  Defendant also cites Dr. Sudilovsky’s testimony that he did not see evidence of asbestos or mesothelioma tissues in the lung pathology sample after evaluating the core needle biopsy of Hernandez’s right lung.  (Defendant’s Ex. 9 at pp. 11, 24-25.)  Hernandez testified his cancer metastasized to his lung and no one has indicated he has asbestos fibers in his kidney or lung.  (Defendant’s Ex. 5 at pp. 452, 454-455.)  Defendant cites expert declarations to support its assertion that none of the exposures to toxins could have caused Plaintiff’s renal cancer.  (Defendant’s Undisputed Material Fact 63, 64, 67-74.) 

Assuming Defendant’s evidence was sufficient to shift the burden, Plaintiffs filed expert declarations showing disputed issues.  Leonard Vance opines it is common for locomotives to have defects that allow gases to escape, and there is evidence that happened to Plaintiff.  (Vance Decl., 8-13.)  Katharine Hammond states she studied occupational exposure of railroad workers to diesel exhaust and secondhand tobacco smoke.  (Hammond Decl., ¶¶ 6, 10.)  She opines tobacco smoke is a cause of kidney cancer, and secondhand tobacco smoke increases the risk and diesel smoke contains carcinogens.  (Id. at ¶¶ 14, 19.)  Jeffrey Montgomery is a professor of urology who studies kidney cancer.  (Montgomery Decl., ¶¶ 2, 3.)  He has seen a number of patients with renal cancer who have a history of exposures to carcinogens from working in transportation or manufacturing.  (Id. at ¶ 8.)  Creosote, TCE, asbestos, crystalline silica, diesel exhaust, and tobacco smoke can promote or contribute to renal cancer.  (Id. at pp. ¶¶ 10-15.)  James Dahlgren discusses studies showing renal cancer in railroad workers, renal cancer caused by asbestos, and renal cancer caused by diesel exhaust.  (Dahlgren Decl., ¶¶ 10-13, 15.)  Stephen King provided a summary of various studies showing renal cancer associated with the types of toxins to which Plaintiff was exposed.  (King Decl.) 

Defendant argues that Plaintiffs’ experts rely on only a few scientific studies about the toxins causing kidney cancer.  (Reply at pp. 3-4.)  On a summary judgment motion, the court cannot conclude that because there are fewer scientific studies on one side of the dispute, there is no disputed issue of fact.

Defendant argues that Vance assumes there was a mechanical defect even though Plaintiff did not mention one.  (Reply at pp. 4-5.)  However, as Vance noted, Plaintiff did testify to a lot of diesel exhaust coming into the locomotive, allowing the inference of a mechanical defect.  Defendant argues Hammond is vague and speculative, and Defendant criticizes her failure to evaluate Plaintiff’s smoking history.  (Reply at p. 5.)  Plaintiff’s smoking and other health factors may have contributed to his renal cancer, but that does not preclude the toxins he experienced at work also being a substantial factor in causing his renal cancer.  

Defendant argues Montgomery’s conclusions lack foundation because he does not assess Plaintiff’s level of exposure but instead relies on Plaintiff’s general descriptions of his work duties, and he does not refer to the documents produced by Defendant in this case.  (Reply at p.6.)  These are areas of cross-examination and go to the weight the jury will give the expert’s opinions.  Defendant argues King relies on irrelevant studies, and he based his opinions on hearsay phone calls with Plaintiff.  (Reply at p. 8.)  Whether studies are irrelevant is a topic of cross-examination and goes to the weight to be given the opinion.  An expert can rely on hearsay, and Plaintiff can provide testify at trial about the substance of those phone calls, thereby providing non-hearsay evidence to support King’s conclusions.  Defendant also argues King did not assess Plaintiff’s particular exposure level and did not focus on Plaintiff’s actual work.  Again, topics for cross-examination.  Defendant argues Dahlgren lacks foundation and does not consider Plaintiff’s exposure levels.  However, Dahlgren’s declaration is primarily useful for its discussion of the scientific literature.  In sum, Plaintiffs showed disputed issues of fact – in particular competing expert opinions on causation.

Defendant also states it is moving for summary adjudication of Plaintiff’s claim under the Locomotive Inspection Act, 49 U.S.C., § 20701.  The complaint alleges only one cause of action against Defendant – for negligence.  The complaint alleges that Defendant was negligent in failing to comply with the Act, which caused his injury.  (Complaint, ¶¶ 11-14.)  As Plaintiff points out, the Locomotive Inspection Act does not create a cause of action for personal injury.  (Opposition at p. 16; Matson v. Burlington Northern Satan Fe Railroad (10th Cir. 2001) 240 F.3d 1233, 1235.)  Because there is no separate cause of action for violation of the Locomotive Inspection Act, it cannot be the subject of a motion for summary adjudication.

In its reply, Defendant says it can move for summary adjudication on an issue of duty.  (Reply at p. 9.)  However, Defendant did not file a motion for summary adjudication on whether a duty exists under the Locomotive Inspection Act.  Rather, Defendant moved for summary adjudication on the issue that Plaintiff cannot establish a violation of the Locomotive Inspection Act, which is not an issue of duty. 

Defendant argues the Court should refuse to consider Plaintiffs’ memorandum of points and authorities because it was served after 5:00 p.m. on March 14, 2024.  (Reply at p. 1.)  Plaintiff provided evidence his memorandum of points and authorities was served at 5:37 p.m. and the rest of the opposition papers by 5 p.m.  Plaintiff also provided evidence that Defendant served its moving papers at 5:26 p.m.  Given both parties’ late service, Defendant was deprived of only 11 minutes of time (5:37 minus 5:26).  Eleven minutes is inconsequential.

The motion for summary judgment is DENIED.

The moving part is to give notice.