Duane H. & Darlene M. Hickson, Appellant's V. Atlantic Richfield ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DUANE H. HICKSON and DARLENE
M. HICKSON, husband and wife, No. 81585-7-I
Appellants, DIVISION ONE
v. UNPUBLISHED OPINION
AIR & LIQUID SYSTEMS
CORPORATION, as successor by
merger to BUFFALO PUMPS, INC.;
BECHTEL CORPORATION; CBS
CORPORATION, a Delaware
corporation, f/k/a VIACOM, INC.,
successor by merger to CBS
CORPORATION, a Pennsylvania
corporation, f/k/a WESTINGHOUSE
ELECTRIC CORPORATION; C.H.
MURPHY/CLARK-ULLMAN, INC.;
ELEMENTIS CHEMICALS, INC., f/k/a
HARCROS CHEMICALS, INC., as
successor-in-interest to HARRISON
CROSFIELD (PACIFIC) and BENSON
CHEMICAL COMPANY; ELLIOTT
COMPANY, d/b/a ELLIOTT
TURBOMACHINERY COMPANY;
FOSTER WHEELER LLC; FRASER’S
BOILER SERVICE, INC.; GENERAL
ELECTRIC COMPANY; GOULD
PUMPS (IPG), LLC; IMO
INDUSTRIES, INC., individually and as
successor-in interest to DE LAVAL
TURBINE, INC.; INGERSOLL-RAND
COMPANY; METALCLAD
INSULATION, LLC; METROPOLITAN
LIFE INSURANCE COMPANY;
NIPPON DYNAAWAVE PACKAGING
COMPANY, LLC; NORTH COAST
ELECTRIC COMPANY; PFIZER, INC.;
P-G INDUSTRIES, INC., as successor-
No. 81585-7-I/2
in-interest to PRYOR GIGGEY CO.,
INC.; SEQUOIA VENTURES, LLC,
f/k/a and as successor-in-interest to
BECHTEL CORPORATION,
BECHTEL, INC., BECHTEL MCCONE
COMPANY, BECHTEL GROUP, INC.;
UNION CARBIDE CORPORATION;
WEYERHAEUSER COMPANY,
individually and as successor-in-
interest to WILLAMETTE
INDUSTRIES, INC., R-W PAPER
COMPANY, and WESTERN KRAFT;
and WEYERHAEUSER NR
COMPANY,
Defendants,
ATLANTIC RICHFIELD COMPANY;
and BRAND INSULATIONS, INC.,
Respondents.
APPELWICK, J. — Hickson appeals from summary judgment dismissing his
claim that he developed mesothelioma following his work as a pipefitter at ARCO’s
Cherry Point Refinery, a worksite that contained Brand asbestos. The trial court
granted summary judgment because Hickson did not testify to or provide expert
testimony that his mesothelioma was caused by asbestos exposure while working
at Cherry Point. We affirm.
FACTS
In 1970, Atlantic Richfield Company (ARCO) contracted with Brand
Insulations, Inc. as a subcontractor to install thermal insulation at the ARCO
refinery at Cherry Point in Ferndale, Washington.
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No. 81585-7-I/3
Duane Hickson worked as a pipefitter throughout his life. He performed
work at various jobsites, including a United States Navy vessel at the Long Beach
Naval Shipyard, Weyerhaeuser Company, and Washington Public Power Supply
nuclear plant in Hanford, Washington. In 1984, Hickson worked at ARCO’s Cherry
Point refinery. In April 2019, Hickson was diagnosed with mesothelioma. Hickson1
sued ARCO and Brand alleging that asbestos exposure at Cherry Point caused
his mesothelioma.2 The trial was scheduled to begin on February 20, 2020.
Hickson passed away on February 6, 2020.
Hickson had been deposed by his attorneys prior to his death to preserve
his testimony. His expert witness, Dr. Carl Brodkin, had the opportunity to review
the deposition transcript and to interview Hickson about his work history and his
occupational exposure to asbestos products. Dr. Brodkin also had the benefit of
reviewing discovery materials when he prepared his written report. Based on
those materials, Dr. Brodkin concluded in his deposition that he could not testify at
trial that Hickson had asbestos exposure while working at ARCO. Thirteen days
later, additional evidence was disclosed by ARCO.
1 Duane’s wife, Darlene Hickson, joined him in the lawsuit. After Duane’s
death, the case was converted to a wrongful death and survivorship action brought
by Darlene as the personal representative of Duane’s estate. Going forward we
refer to “Hickson” for simplicity’s sake. No offense is intended.
2 In his initial complaint, Hickson also sued over 20 companies he had
previously worked at that he claimed were responsible in part for his developing
mesothelioma. The depositions of Hickson and Dr. Brodkin addressed all claims.
Only the orders granting summary judgment to ARCO and Brand are on appeal.
According to ARCO, most of the other defendants settled with the plaintiff and were
voluntarily dismissed.
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No. 81585-7-I/4
ARCO moved for summary judgment, alleging that Hickson had failed to
demonstrate that he had been exposed to asbestos at Cherry Point, that he had
no expert testimony to establish causation, and that all his claims were purely
speculative. While citing to case law about hypothetical opinions, Hickson’s
response to the summary judgment motion asserted that Brodkin had testified that
if certain exposure was demonstrated he would testify to causation. He further
argued that discovery material received subsequent to Brodkin’s deposition
testimony provided evidence of that exposure. Hickson did not supplement Dr.
Brodkin’s deposition testimony with any new evidence.
The court granted ARCO’s summary judgment, finding that Hickson did not
show a genuine issue of material fact as to causation with the evidence provided.
Brand also filed a motion for summary judgment which the court granted on the
same grounds.
Hickson appeals the orders granting summary judgment of their claims
against ARCO and Brand.
DISCUSSION
“The court reviews summary judgment decisions de novo, engaging in the
same inquiry as the trial court.” Morgan v. Aurora Pump Co., 159 Wn. App. 724,
728, 248 P.3d 1052 (2011). “‘When ruling on a summary judgment motion, the
court is to view all facts and reasonable inferences therefrom most favorably
toward the nonmoving party.’” Id. (quoting Lybbert v. Grant County, 141 Wash.2d
29, 34, 1 P.3d 1124 (2000)). “Summary judgment is proper if the pleadings,
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No. 81585-7-I/5
depositions, answers, and admissions, together with the affidavits, show that there
is no genuine issue of material fact and the moving party is entitled to judgment as
a matter of law.” Morgan, 159 Wn. App. at 729; CrR 56(c). To survive summary
judgment, Hickson would need to demonstrate that there was a genuine issue of
material fact that he had been exposed to asbestos and that his exposure to
asbestos caused his mesothelioma. See Morgan, 159 Wn. App. at 736.
A. Exposure
Hickson claims that he was exposed to asbestos when he disturbed
insulation while working at Cherry Point. He states that it can be reasonably
inferred that this insulation contained asbestos. He argues the resulting
occupational exposure to asbestos-containing materials caused his mesothelioma.
“It is well settled that asbestos plaintiffs in Washington may establish
exposure to a defendant’s product through direct or circumstantial evidence.” Id.
at 729. A plaintiff does not need to personally identify manufacturers of asbestos
products to which he was exposed, but can rely on testimony of witnesses who
can identify the manufacturers of asbestos products present at the workplace. Id.
The testimony does not need to be detailed to show exposure. Id. If circumstantial
evidence is used, the plaintiff must provide reasonable inferences to establish the
facts. Id.; see Arnold v. Sanstol, 43 Wn.2d 94, 99, 260 P.2d 327 (1953) (”The facts
relied upon to establish a theory by circumstantial evidence must be of such a
nature and so related to each other that it is the only conclusion that fairly or
reasonably can be drawn from them.”)
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No. 81585-7-I/6
The fact that asbestos containing insulation was present on some but not
all piping at Cherry Point is not in dispute. Dr. Brodkin’s report documents its
presence and the potential for exposure to asbestos.
Potential exposure to old/existing ACM [(asbestos containing
material)] pipe-covering insulation (during removal for flange access)
on ~6”-8” pipe rack systems – (not characterized with respect to
refinery unit or whether hot/steam system, or date of installation of
existing pipe-covering). If evidence that pipe-covering Mr. Hickson
removed was on hot/steam systems installed ≤ 1975 (e.g. original to
refinery [1969-1972 – Ralph M. Parsons/Brand Insulation]), then
there would be identified ACM exposure. ARCO Responses to
Interrogatories – (8/6/09 Jones v. Saberhagen, et al – Whatcom Co.
No. 09-2-00969-1) & RM Parson Contract (11/5/69) indicate
specifications for unibestos, Kaylo, Thermobestos, Paboo for piping
and equipment insulation. In 12/4/12 Deposition Testimony, Michael
McGinnis (Project Engineer for Bland Insulation during ARCO Cherry
Point construction), confirms use of ACM insulation during
construction (as well as non-ACM), including various pipe insulation
& insulating cement. 11/29/71 Metalclad Invoices for ARCO Cherry
[Point] Refinery construction document various ACM insulation (RM
Parsons Co.) including 85% magnesia cement; blue mud, &
Thermobestos pipe-covering. Asbestos sampling/monitoring in the
1980’s documents the existence of ACM pipe-covering extant at the
ARCO Refinery in various locations (e.g. scrap metal area pipe-
covering [8/2/84], steam line vacuums [6/25/85], boiler and turbine
steam lines [5/6/88-5/23/88], and boilerhouse de-aerator system
[4/7/89-4/8/89], as well as non-ACM material (e.g. glass wool:
fiberglass, mineral wool, and cellulose). Sampling of vacuumed
boilerhouse dust from pipes and vessels in 7/84 document asbestos
(“too loaded to count”). A July 1-13, 1987 “Asbestos Identification
Survey” for the ARCO Cherry Point Refinery (Olsen Consulting)
identifies ACM pipe-covering insulation in various refinery locations
(eg. process control bldg. [(building)] main steamline; elbows
“fittings”, administration bldg. pipe elbows, fittings; lab bldg. pipe
elbows & fittings; security bldg. pipe elbow: fittings; [with] mixed
chrysotile and amosite, as well as non-ACM pipe covers.
(Some alterations in original.)
Dr. Brodkin was retained by Hickson’s counsel to provide an expert opinion
about whether any significant exposure to asbestos occurred at Cherry Point (and
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No. 81585-7-I/7
other locations) and whether that exposure was a significant cause of Hickson’s
mesothelioma. Before drawing any conclusions about exposure at Cherry Point,
Dr. Brodkin had the benefit of reviewing Hickson’s deposition, conducting an
interview with Hickson, and accessing information about the refinery. Hickson
testified relating to Cherry Point:
Q Handing you what’s been marked as Exhibit 20, can you
identify that for us, please?
A Yeah. That --that’s the ARCO refinery at Cherry Point where
we worked.
Q And in taking this pen, can you circle on Exhibit 20 the area at
Cherry Point where you did your work over that six-week
period of time while working for Trico?
A . . . . I would do this area right in this vicinity here (indicating).
....
Q . . . . [H]anding you what’s been marked as Exhibit 21, I’d like
you to look at that and ask you . . . whether or not it fairly and
accurately depicts some of the piping systems that you were
working on at ARCO?
....
A Yes, it does.
....
Q Did you work on piping systems at ARCO, sir?
A Yes.
....
Q . . . . Okay. Did you do that a little bit or did you do that a lot?
A The whole six weeks you’re work[ing] on piping systems.
....
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No. 81585-7-I/8
Q . . . . with that foundation . . . in mind, can you tell me whether
or not Exhibit 21 fairly and accurately depicts the piping
systems that you worked with at ARCO Cherry Point over that
six-week period of time?
A It does because there’s -- there’s piping here -- not exactly
that piping, but there’s a good example of valves that may
need to have gaskets replaced or the valve had a drip on it
and they wanted to fix it and you take it out and you put all
new gaskets and new valve in and --
Q And can you tell me whether or not the -- any of the piping
systems that you worked on at ARCO Cherry Point over that
six-week period of time were insulated?
A Lots of them.
Q Okay. And was it possible for you to perform your work on
piping at ARCO Cherry Point over that six-week period of time
without removing the insulation?
A No. There was -- there was insulation moved back. We had
a -- it was either a 30- or a 36-inch pipe which was one of the
larger ones in the refinery . . . and those required a Flexitallic
gasket so you -- we actually had to have a crane come in there
and . . . they built a scaffolding and they Visqueen the area.
And that -- that project was handed off several times and I
never got to fully complete the project, but there was . . .
asbestos on the . . . scaffolding and . . . in the area where they
pulled it back because that particular flange had bolts, stud
bolts that big around (indicating), and they had to have a --
what you would call a multiplier. It ain’t something you just go
up and put a wrench on. You --
Q Okay. So what, if anything, would occur when the asbestos
was removed from pipes at ARCO Ferndale --
A Well, you’d have --
Q -- during that six-week period of time that you worked there?
A Well, you’d have the debris from any . . .
....
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No. 81585-7-I/9
. . . of the insulation all over the place where you were and
you’d change the gasket and you’d try and compete the
project and . . . that one I didn’t get it complete. We worked
on it. . . . [T]hey put some little gal weighed about a hundred
pounds working with me and -- and that was entertaining, her
trying to handle some of that big stuff and --
Q . . . . Hand --
A -- and then they moved us.
Q Handing you what’s been marked as Exhibit 22 (22A), does
that photograph assist you in explaining how the insulation
was peeled back in order to do your work at ARCO Ferndale
over that six-week period of time?
....
A You had -- the insulation might be closer to the flanges and
then it had to be moved back like what we’re trying to show
on our exhibit so you could get the bolts out.
Q . . . So recognizing that Exhibit 22 (22A) does not appear to
be asbestos insulation, can you tell me whether or not it
nevertheless fairly and accurately depicts the manner in which
insulation was peeled back in order to access the flanges of
the pipes that you worked on at ARCO Ferndale over the six-
week period of time?
....
[A] Go through that again, would you please?
[Q] Does Exhibit 22 (22A) fairly and accurately depict the manner
in which insulation was removed from pipes --
A Yeah.
Q -- at ARCO Ferndale in order to access the flanges to do --
A Yes.
Q -- the work?
A Yes, it does. Other than like this exhibit, that’s -- you can see
it’s fiberglass. It’s not the . . . insulation that . . . we had
removed so that we could do our job.
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No. 81585-7-I/10
In his written report, Dr. Brodkin summarized Hickson’s work at Cherry Point
as follows:
Mr. Hickson worked in various refinery locations (“all over the
place” [not further characterized]). He installed a new [flexitallic]
gasket on a large bore pipe [with] prior removal of insulation and old
gasket material by others (“all the insulation was stripped back” (30”-
36” pipe). He performed some [garlock] gasket installations (“drop a
gasket in”) noting it was not necessary to completely open flanges to
remove old gaskets. Mr. Hickson’s work on 6”-8” pipe racks included
the following (install [with] pre-cut gaskets) on unknown systems.
Direct Removal of Old/Existing Pipe Covering for [F]lange [A]ccess
Mr. Hickson intermittently had to remove pipe-covering
insulation, noting “if the insulation is up to where the bolts are there,
then it has to be moved back”; “you have to remove it in order to get
the bolts out”; [with] general recollection of pipe-covering removed
(not a specific piping system). Work all outdoors.
Dr. Brodkin’s understanding was that Hickson “intermittently had to remove pipe-
covering insulation” working outdoors. He indicates Hickson cannot recall
specifically which piping systems he worked on or removed insulation from.
Hickson’s response to summary judgment conceded that he could not remember
the precise locations he worked with in the refinery.
A close reading of Hickson’s deposition reveals that he did not offer any
testimony establishing that he removed asbestos containing insulation from pipes.
It establishes that Hickson sometimes removed insulation. He described insulation
having been removed on a 30-36 inch pipe, but does not say he removed it. His
counsel next asked what would occur “if asbestos was removed” from pipes, he
replied you would have insulation all over the place. This was the only reference
to asbestos in the Cherry Point portion of Hickson’s deposition. Notably, Hickson
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No. 81585-7-I/11
did not say that when insulation had to be removed to do his gasket work, that he
did the removal. He did not say that he removed asbestos insulation at all, let
alone on a specific piping system or on a regular basis. As a result, the need to
use circumstantial evidence to connect where Hickson worked to the location of
asbestos containing insulation became very important.
Not surprisingly, when Dr. Brodkin was deposed about Hickson’s time at
Cherry Point, he said he could not testify that Hickson was exposed to asbestos at
the ARCO refinery:
[Q] You are an expert in occupational and environmental
medicine, correct?
A Yes.
Q And one of the things that you do in that line of work is
evaluate whether certain exposures or alleged exposures are
sufficient to increase someone’s risk of an asbestos disease,
correct?
A That’s true.
Q And you do the same thing to determine whether you can
render an opinion as to whether a certain exposure was a
cause of -- a substantial factor in causing someone’s
asbestos-related disease, correct?
A Yes. Based on reviewing evidence, I can reach that
determination or rule it out.
Q And potential exposure isn’t sufficient to allow you to render
those opinions as to increased risk and causation, correct?
A That’s true. That would require additional speculation.
Q What you need to do in order to render an opinion on
increased risk or causation is engage in a careful and
thorough assessment of occupational and environmental
history to identify any biologically significant exposures; is that
correct?
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No. 81585-7-I/12
A That’s correct.
Q And as you use the term identified exposure in this case, is
that synonymous with the biologically significant exposure
identified through a careful and thorough assessment of the
occupational and environmental history?
A Yes, it would be.
Q In this case, have you been provided with evidence from
environmental history with respect to a job he did at ARCO’s
Cherry Point refinery for about a month in 1984?
A The main material I was provided was through Mr. Hickson’s
deposition testimony. He indicated that he was on that site
and performed various activities with piping at the ARCO
facility in 1984.
Q Did you carefully and thoroughly review that occupational and
environmental history?
A Yes, I did.
Q Were you able to determine based upon that careful and
thorough assessment whether Mr. Hickson experienced an
identified exposure to asbestos at the Cherry Point refinery to
a reasonable degree of medical certainty?
A I did not identify asbestos exposure at the ARCO facility. I did
indicate, and I have indicated in my report, that he did work
over a period of four to six weeks with insulation, removing
insulation to -- the pipe covering insulation to access flanges
on a pipe racking system for six- to eight-inch pipe.
But that insulation material in 1984 was not sufficiently
characterized either in terms of the refinery application, the
temperatures, whether it was on a hot system, or the location
for me to identify that as asbestos containing
I have noted that that is a potential exposure based on the
current information.· I certainly was provided discovery
documents that document during the '69 to '72 construction of
ARCO the use of asbestos-containing insulation materials.·
But I don’t have sufficient evidence to say that in 1984, Mr.
Hickson worked with original asbestos-containing materials or
some non asbestos-containing material.
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No. 81585-7-I/13
So I have noted that that’s a potential exposure during that
four-week period in 1984, but there’s not sufficient evidence
based on what I have reviewed to identify it.
Q So putting a finer point on it, you will not testify based upon
what you know now, you will not testify in this case that Mr.
Hickson’s risk of asbestos-related disease was increased
because of his work at Cherry Point to a reasonable degree
of medical certainty; is that correct?
A True. Based on the current information, that would be correct.
Q And you also will not testify that his work at Cherry Point was
a substantial contributing factor to causing his asbestos-
related disease, correct?
A That’s true. Based on the current [information] I have
reviewed, that’s correct.
Q Are you planning to review any additional information?
A I have not requested additional information.· As I said, my
practice, if provided additional information, would be to read
and consider it.· If it impacted any of my opinions regarding
Mr. Hickson’s exposures or health-related effects, I would
then submit a separate addenda.
Dr. Brodkin knew that breaking open asbestos containing insulation was a
potentially significant exposure. Because he reviewed Hickson’s deposition, Dr.
Brodkin knew of the testimony about asbestos on the scaffolding. This did not
prove sufficient for him to conclude there was a significant exposure. The direct
evidence fell short of establishing actual biologically significant exposure. The
circumstantial evidence however established potential for such exposure. Dr.
Brodkin stated potential exposure is not sufficient to assess risk or causation; it
would require speculation. He was correct.
Hickson argues that Brodkin’s opinion was given prior to the completion of
ARCO’s production of answers to discovery. But, whether the later produced
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No. 81585-7-I/14
materials would have changed Dr. Brodkin’s opinion is speculation. He did not
supplement his report or provide a declaration based on the new evidence. And,
the summary judgment materials do not appear to resolve where Hickson
performed his duties or that he disrupted asbestos containing insulation that
resulted in exposure.
If we were to conclude to the contrary, that a question of material fact
existed as to any exposure, this conclusion would not resolve the issue of
causation.
B. Causation
The trial court granted summary judgment stating that Hickson did not
submit sufficient evidence to establish a genuine issue of material fact as to
causation. In an asbestos case, the plaintiff must show a causal connection
between the injury, the product, and the manufacturer. Morgan, 159 Wn. App. at
729; RCW 7.72.030(1). Even if there was sufficient evidence of exposure to
survive summary judgment, Hickson must still satisfy the Lockwood test to
establish that sufficient evidence shows asbestos was a substantial factor in
causing mesothelioma. Morgan, 159 Wn. App. at 739; Lockwood v. AC & S, Inc.,
109 Wn.2d 235, 248-49, 744 P.2d 605 (1987).
The Lockwood test has four factors: “(1) plaintiff’s proximity to the asbestos
product when the exposure occurred and the expanse of the work site where
asbestos fibers were released; (2) the extent of time the plaintiff was exposed to
the product; (3) the types of asbestos products to which plaintiff was exposed and
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No. 81585-7-I/15
the ways in which the products were handled and used, and (4) the evidence
presented as to medical causation of the plaintiffs particular disease.” Morgan,
159 Wn. App. at 730.
Dr. Brodkin stated that he would not testify to causation of Hickson’s
mesothelioma based on exposure to asbestos at the ARCO site. Hickson offered
no other expert testimony. Instead, he argues that Dr. Brodkin provided a
hypothetical answer in his deposition on which the court could conclude his opinion
would support causation. He further argues that the discovery materials received
subsequent to Dr. Brodkin’s deposition provide the facts necessary to satisfy the
hypothetical. This argument relies on a portion of Dr. Brodkin’s deposition:
Q So our discussion so far is really focused on the component
of your methodology for determining identified exposure, the
element of the known source of asbestos exposure, correct?
A A well-characterized source, yes.
Q Now I want to ask you about whether or not, assuming you
could get by that first element of your methodology, that is a
known source of asbestos exposure, have you seen evidence
of a well-characterized activity that disrupts the source to
generate airborne fibers sufficient to overcome the body’s
respiratory defenses?
A Yes.· If it were an asbestos-containing material, my opinion
would relate to insulation removal, asbestos-containing
insulation removal.· And I have noted on Page 2 of the
diagnosis and assessment section an exposure range ranging
from 0.2 up to 60 fibers per cc [(cubic centimeter)] associated
with removal of asbestos-containing insulation.
So if it were an asbestos-containing material, there would be
a significant intensity of exposure.
Q How did you come up with those ranges?
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No. 81585-7-I/16
A I am citing two studies that inform my opinion about that.· The
first would be Balzer and Cooper from 1968.[3] Insulation
removal was associated with a .2 to 26.3 fiber per cc range.
And then Marr in Industrial Hygiene Foundation Journal,
1964, with block and pipe covering insulation removal noted a
.8 to 10 million particles per cubic foot, which converted to
fibers per cc could be up to 60 fibers per cc.
Q Did Mr. Hickson testify to any specific example of him ever
removing asbestos -- or excuse me – removing insulation?
A Yes.· I’ve noted it on Page 27 of the occupational and
environmental history section, direct removal of old existing
pipe covering to access the flanges.· That would be
intermittent, but he did indicate that he had to remove pipe
covering insulation on -- at various times to access the vaults.
Q And would it matter to your opinion how many times that
occurred or how long he was engaged in that activity?
A Yes, I would say that this -- I would describe it as an
intermittent exposure because he didn’t, integral to the
activity, have to knock off insulation for each flange.
Q I guess what I’m asking is . . . would there be a level of activity
that you’ve described that would constitute a de minimus
exposure in your parlance as opposed to an identified
exposure based upon what Mr. Hickson said?
A Yeah, the removal of pipe covering to access a flange would
be an identified exposure.
Q Regardless of he said it was always raining, if it was raining,
he took five minutes to move the stuff back, in your opinion
that would an identified exposure?
A Yes. Now, those conditions I would consider, but they could
put it at the lower range of the exposure.
Q Okay.· But just to be clear, just as hypothetically if you were
able to determine that there was a day during this period of
time when Mr. Hickson spent five minutes pulling back
insulation from a flange, and it was pouring down rain the
3 Dr. Brodkin did not further identify the sources that he was referring to.
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No. 81585-7-I/17
whole time, your opinion would be that that was an identified
exposure as you use that term in this case?
A Just to clarify, is your question that this is a one-time event?
Q Yes.
A I would probably not identify that because in a one-time event,
there would be too much uncertainty.· I mean, maybe in an
outdoor situation the wind was blowing the other way with one
time. I think there would be too much uncertainty there.
Q So how many more than one would it take for you to say right
now we’re beyond the range of de minimus into identified?
A I don’t think there’s a bright-line number.· But I think when you
get to, you know, three or four times removing it, it becomes
much more robust.· It’s not just the issue of one time the wind
was blowing the other direction.
Q And is much more robust the same thing as identified
exposure?
A It’s more robust. Obviously the more times it’s done, the more
robust it is.
(Emphasis added.)
Hickson worked on pipes outdoors. Wind and rain are factors that would
affect the intensity of exposure to any airborne asbestos. Hickson stated that “lots”
of pipes were insulated. At best, the record establishes that Hickson intermittently
removed pipe-covering insulation. Dr. Brodkin could not say with certainty how
many asbestos exposures of the type alleged to have happened here would be
enough to establish causation. He said there is no bright line number of exposures.
The lack of a bright light exposure number illustrates why expert opinion is required
on causation. And, here, nothing establishes that he actually removed asbestos
containing insulation, or even that it was removed by someone else in his
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No. 81585-7-I/18
presence. Nothing establishes how often, for how long, or under what
environmental conditions any alleged asbestos exposure occurred. The jury would
be required to speculate as to both exposure and causation.
The evidence at summary judgment did not support a conclusion that
Hickson satisfied the Lockwood factors. The trial court did not err in granting
summary judgment.
We affirm.
WE CONCUR:
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