Walashek, et al v. Air & Liquid Systems Corporation, et al

Filing 352

ORDER Granting Defendant J. T. Thorpe & Son, Inc.'s 267 Motion for Summary Judgment. Signed by Judge Barry Ted Moskowitz on 11/2/2015. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GAIL ELIZABETH WALASHEK,
Individually and as successor-ininterest to THE ESTATE OF
MICHAEL WALASHEK and THE
ESTATE OF CHRISTOPHER
LINDEN, et al.,
Plaintiffs,

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v.

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AIR & LIQUID SYSTEMS
CORPORATION, et al.,

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Case No.: 14cv1567 BTM(BGS)
ORDER GRANTING
DEFENDANT J.T. THORPE &
SON, INC.’S MOTION FOR
SUMMARY JUDGMENT

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Defendants.
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On July 17, 2015, Defendant J.T. Thorpe & Sons, Inc. (“Thorpe”) filed a
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motion for summary judgment against Plaintiffs. On August 28, 2015, Plaintiffs
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filed a notice of non-opposition to Thorpe’s motion.
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14cv1567 BTM(BGS)

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On June 17, 2014, Plaintiffs commenced this wrongful death and survival

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action in state court. The Complaint alleges that Michael Walashek’s exposure to

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asbestos and asbestos-containing products, in the course of performing his work

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for various employers, resulted in severe and permanent injury and ultimately

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death. On June 27, 2014, this action was removed to federal court.

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Plaintiffs’ claims against Thorpe are based on allegations that Thorpe

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exposed Mr. Walashek to asbestos dust through its work with refractory materials

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in and around boilers upon which Mr. Walashek may have worked. Thorpe moves

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for summary judgment on the ground that Plaintiffs cannot establish that Mr.

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Walashek was exposed to asbestos from activities of Thorpe’s employees or from

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refractory materials installed by Thorpe.

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Thorpe is a refractory contractor. (Dep. of John Dawson (Ex. K) at 17:13-16.)

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Thorpe contracted with shipyards and shipbuilders to perform refractory work

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inside boilers aboard ships. (Dawson Dep. at 19:1-10.)

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However, Plaintiffs have been unable to establish that Mr. Walashek was

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exposed to asbestos as a result of the activities of Thorpe. Plaintiffs’ written

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discovery responses failed to identify specific documents or facts supporting

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Plaintiffs’ claims against Thorpe. (Ex. C.) When deposed, Frank Walashek, Ron

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Gray, and Jim Doud, the three persons identified as persons with knowledge to

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support Plaintiffs’ claims against Thorpe, could not provide any information
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regarding Mr. Walashek working with or around any product manufactured or

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supplied by Thorpe. (Exs. D, E, F.) Furthermore, Plaintiffs themselves failed to

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provide any information about Thorpe at their depositions. (Exs. G-J.)

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Thorpe has satisfied its initial burden of production on summary judgment by

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showing that Plaintiffs have insufficient evidence of an essential element of their

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case – i.e., that Mr. Walashek was exposed to asbestos-containing products as a

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result of activity by Thorpe. “In the context of a cause of action for asbestos-related

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latent injuries, the plaintiff must first establish some threshold exposure to the

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defendant's defective asbestos-containing products, and must further establish in

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reasonable medical probability that a particular exposure or series of exposures

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was a “legal cause” of his injury, i.e., a substantial factor in bringing about the

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injury.” Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 982 (1997).

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Because Thorpe has satisfied its initial burden, the burden shifts to Plaintiffs,

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who must produce enough evidence to create a genuine issue of material fact.

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See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

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submitted any evidence in opposition to the motion and have instead filed a notice

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of non-opposition.

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Plaintiffs have not

Therefore, the Court GRANTS Thorpe’s motion for summary judgment [Doc.
267] against Plaintiffs.

Because the Court finds that there is no just reason for

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delay, the Court orders the Clerk to enter final judgment in favor of J.T. Thorpe &

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Son, Inc.

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IT IS SO ORDERED.

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Dated: November 2, 2015

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