Products Liability Law Daily Dismissal of five glass suppliers affirmed in glass, metal particle inhalation case
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Thursday, August 13, 2020

Dismissal of five glass suppliers affirmed in glass, metal particle inhalation case

By Robert B. Barnett Jr., J.D.

Summary judgment was warranted for the five glass suppliers because while each presented evidence sufficient to show the lack of a connection between their finished products and the worker’s exposure to harmful substances, the worker’s family failed to submit evidence in response demonstrating the existence of a triable issue of material fact.

In a workplace exposure suit filed by the survivors of a worker who allegedly died from inhalation of glass and metal particles caused by the grinding and sanding of glass products that had been sold to his employer, a California appellate court, in an unpublished opinion, has affirmed a lower court’s dismissal of five of the 33 defendants because the products they sold to the worker’s employer were finished products that required no cutting, grinding, or sanding. Although one of the dismissed defendants may have sold glass capable of being cut to a company that sold glass to the employer, in the absence of any evidence that the worker was exposed to sanded glass from that supplier, the supplier was properly dismissed because the mere possibility of exposure did not establish a triable issue of fact (De Molina v. Glasswerks LA, Inc., August 12, 2020, Collins, A.).

The worker was employed by Lucky’s Glass as a glazier from 1993 until 2014. During his employment, he "worked with and around inherently hazardous metal alloys, glass products, fiberglass products, machines, abrasive products, sand products, and other chemical products manufactured, distributed and/or supplied by" the defendants. After he died, the worker’s family sued in Los Angeles state court a number of companies that supplied glass and mirrors to Lucky’s Glass, alleging that the worker’s inhalation of aerosolized particles from the cutting, grinding, and sanding of their glass and mirrors caused his death. Five of the defendants—PRL Glass Systems, Inc., PRL Aluminum, Inc., Glasswerks LA, Inc., New Glaspro, Inc. dba GlasPro, and Pilkington North America, Inc.—filed motions for summary judgment. The trial court granted all five motions, ruling that no triable issues existed that the glazier was ever exposed to the cutting, grinding, or sanding of their glass products. The glazier’s family appealed to the Second Appellate District, Division Four, in Los Angeles.

Threshold issues. The appellate court rejected the decedent’s family’s argument on appeal that the lower court erred when it required the family to establish both causation and exposure when it was only addressing exposure. The appellate court disagreed with the family’s interpretation of the lower court’s ruling. Nevertheless, the appellate court acknowledged, the family was correct that the only issue that the five companies raised in their summary judgment motions was exposure. As for the summary judgment process, under California law, when a party moving for summary judgment meets its threshold burden by demonstrating that one or more of the elements of the cause of action could not be established, the burden shifts to the party defending the motion to set forth specific facts that establish a triable issue.

PRL. The two PRL companies sought summary judgment on the ground that they sold only finished products to the employer. As a result, the glazier could not have been harmed by PRL products because none of those products were ever cut, ground, or sanded at Lucky’s Glass. The two PRL companies offered an affidavit and deposition testimony to support their motion. The glazier’s family made two arguments for reversing the lower court’s ruling that the burden had been shifted: (1) the affidavit was inadmissible on the ground that the affiant was not sufficiently qualified to make the statement, and (2) the deposition testimony did not conclusively negate exposure.

The court rejected the argument that the affidavit was inadmissible. An affidavit, the appellate court noted, need only be made based on "personal knowledge." PRL’s founder and CFO, with decades of experience in the business, was certainly qualified to state which sorts of products were sold to the employer. The fact that he was not an expert on finished glass products or on the release of aerosolized glass particulates was irrelevant. He was not offering an expert opinion, but rather a factual statement. Thus, the lower court did not err in accepting his affidavit.

The glazier’s family also argued that deposition testimony by a PRL employee about PRL invoices failed to shift the summary judgment burden to the family because the deposition questions only involved a few invoices. The questions that PRL asked at the deposition, however, established that PRL did not sell anything but finished products to the employer.

Once the burden shifted, to establish a triable issue, the family asserted that PRL was a long-time, regular supplier of glass and aluminum products to the employer. This failed to meet the family’s burden of establishing a triable issue, given that PRL established that it sold only finished products that needed no cutting, grinding, or sanding.

GlasPro. Once again, the glazier’s family argued that declarations to support the summary judgment motion were inadmissible, this time from GlasPro’s CEO. However, the court concluded that GlasPro adequately shifted the burden back to the glazier. For the same reasons that the PRL companies’ statements about what they sold to the employer were upheld as admissible, the appellate court upheld as admissible GlasPro’s statements that they sold only finished products to the employer. Once again, the affiant was not required to be an expert in glass particle inhalation. He had every right to state, based on his personal knowledge, that GlasPro sold only finished products. Also, once again, the glazier’s family failed to create a triable issue after the burden shifted, which consisted only of a contention that laminated glass of the type that GlasPro sold was capable of being cut. To conclude that this fact created a triable issue would require "a leap of conjecture, unsupported by any evidence," according to the court of appeal.

Glasswerks. To support its summary judgment motion, Glasswerks submitted the family’s discovery responses, which failed to provide any names of anyone with any knowledge of exposure to Glasswerks products in the glazier’s presence. The family’s response provided the names of two co-workers, neither of whom could state in their depositions any potential exposure that the glazier may have had to Glasswerks products. With the burden shifted, the family’s only evidence of a triable issue was a statement from a witness that he remembered cutting glass from Avalon Glass & Mirror Company, which he believed was owned by Glasswerks. Given that no factual basis existed in the record for the witness’s assertion, the lower court was correct to grant Glasswerks’ summary judgment motion, the appellate court ruled.

Pilkington. Finally, Pilkington’s motion was supported by the deposition of three of the glazier’s co-workers, none of whom had ever heard of Pilkington. The family’s response was that this did not disprove Pilkington’s liability because those three employees did not work closely with the glazier. However, in written discovery, the plaintiffs identified those three co-workers as the witnesses with the most knowledge of the glazier’s exposure. As a result, the burden shifted again. The family’s evidence of a triable issue was that a company called Girard Glass sold non-fabricated glass to the employer, and Pilkington was one of Girard Glass’s biggest suppliers. The plaintiffs also contended that some of the glass that Pilkington sold to Girard was capable of being cut. This possibility, without more, was "insufficient to establish a triable issue of fact," the appellate court found. Consequently, summary judgment was proper.

The California appellate court, therefore, affirmed the judgments in favor of all five companies.

The case is No. B301736.

Attorneys: Raphael Metzger (Metzger Law Group) for Rose Pena De Molina. John H. Shaffery (Poole Shaffery & Koegle, LLP) for Glasswerks LA, Inc.

Companies: Glasswerks LA, Inc.

MainStory: TopStory CausationNews EvidentiaryNews ChemicalNews IndustrialCommercialEquipNews CaliforniaNews

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